MISCELLANEOUS  WRITINGS 


OF   THE   LATE 


HON.  JOSEPH  P.  BRADLEY, 

ASSOCIATE  JUSTICE  OF  THB  SUPREME  COURT  OF  THE  UNITED 

STATES,    WITH  A  SKETCH   OF  HIS  LIFE  BY  HIS  SON, 

CHARLKS  BRADLEY,  A.M. 


REVIEW  OF  HIS  "JUDICIAL  RECORD," 


WILLIAM  DRAPER  LEWIS, 

EDITOR  OF  THE  "  AMERICAS  LAW  REGISTER  AND  REVIEW, 
OF  PHILADELPHIA,   P.v., 


AN   ACCOUNT  OF  HIS  "  DISSENTING  OPINIONS,' 

BY   THB  LATE 

A.  Q.  KEASBEY,  ESQ.,  OF  NEWARK,  N.  J. 


EDITED   AND   COMPILED   BY   HIS  SON, 

CHARLES  BRADLEY. 


NEWARK,  N.  J.: 
L,.  J.  HARDIIAM,   243-5  Market  Street. 


COPYEIGHT  1901  BY  CHARLES  BRADLEY. 


CONTENTS. 


FRONTISPIECE. 

PREFACE,        .          .          .          .          .          .          .       vii-xii 

BIOGRAPHY,        .......  i 

JUDICIAL  RECORD,   .          ...          .          .  15 

DISSENTING  OPINIONS,            .          .          .          .  33  - 

THE  LEGAL  TENDER  CASES  IN  1870,  AND  A  "  STATEMENT 
OF  FACTS"  IN  RELATION  THERETO,  BY  THE  MA- 
JORITY OF  THE  UNITED  STATES  SUPREME  COURT 

AT  THAT  TIME,   ......  45 

PERSONAL,  POLITICAL,  HISTORICAL  AND  PHILOSOPHICAL. 

Essays,  Letters  and  Historical  Notes. 

Aaron  Burr,          ......  77 

A  Love  Letter,           ......  78 

Admission  to  the  Bar,    .....  79 

A  Picture.      .......  80 

Translation  of  Lucan's  Eulogy  on  Pompey,     .            .  82 

To  My  Sister  Mary,    ......  83 

Dreamland,           ......  84 

The  Marital  Relation,  .  .  .  .  .86 

Rutgers  Alumni  Dinner,              ....  88 

Equality,         .......  90 

Political  Economy,           .....  93 

Fenianism,      .......  95 

Political  Expressions,       .....  97 

The  Constitutional  Amendment  [XIII],       .            .  151 

Opinions  in  The  Electoral  Commission,  1877,    .            .  165  > 

Electoral  Commission,           .....  217  >/ 

Electoral  Commission— Reply  to  Charges,         .  220  */ 

Electoral  Commission,          .           .            .                        .  223 

Lecture  on  Law,           "    .           .                       .  225 
Organization  of  the  United  States  Circuit  Court  of  Appeals 

for  the  Third  Circuit,      •            .           .           .           .  267 


4137488 


IV  CONTENTS. 

PAGE. 

Thomas  Hobbes,  ..  283 

Age  of  Egyptian  Civilization,      '*     .  .      285 

Macaulay,  ...  •          .  .  286 

History,          ...  .      287 

Carlyle's  "  French  Revolution,"  290 

Stowe,  .  .  ,  .  .  .292 

History  of  Washington  Park,  Newark,  N.  J.,      .  294 

Truth,  ...  .298 

Variety  of  Intellectual  Capacities,  .  299 

Will :  Self-Control,    .  .  3°° 

Experience,  or  Self-Improvement,  .  301 

Principles  Should  Be  Fixed,  .  .      303 

Family  Happiness,  .  .  .  305 

Home,  Defined,          .  .  .    .      3°5 

Happiness,  .  .  3°6 

Time,  '     ,  .  .  .  .  ..      308 

The  Teaching  of  Children,  .  .  3I°X 

Fit  Expressions,         .  .  .  .  ..311 

Eloquence,  .  ...  313 

Style,  .      3M 

Metaphysics,         .  .  .  .  .  316 

Upham  on  the  Mind  and  its  Disorders,        .  .  .318 

The  Human  Mind,  .  .  .  .  .321 

The  English  Guttural  U,  .  322 

Er,  By,  Neah,        ......  323 

Freedom  of  Thought,  .  .  '.  .  .324 

ASTRONOMICAL,  SCIENTIFIC  AND  MATHEMATICAL. 

"  Studies,"  Letters,  &*c. 

The  First  Steam  Engine  in  America,      .  .  .  329 

Easter  Day  and  Court  Terms,          .  .  .  331 

Perpetual  Calendar,  333 

Table  for  Finding  Mean  Time  of  New  Moon,  .  .      334 

New  Calendar  Proposed,  .  .  335 

—  Letter  to  the  Secretary  of  the  Treasury,       .  .  .341 

Recurrence  of  Ice  Periods  in  the  Northern  Hemisphere,          346 

Standard  of  Weights  and  Measures,  .  .  -347 

The  Force  of  Water  as  Used  in  Hydraulic  Machinery  in 

Mining,          ..  ..  .  .  .  .  350 


CONTENTS.  V 

PAGE. 

RELIGIOUS  AND  MORAL. 
Essays  and  Letters. 

Religion  in  the  Constitution,             ....  357 

Christianity— Its  Immortality.      .                         .            .  359 

Noah's  Ark,                ......  360 

The  Moral  Faculty,          .            .            .            .            .  361 

Precept  and  Example,            .....  364 

Example,               ......  366 

Reformers,      .            .                         ....  367 

The  Lord's  Prayer,            .....  368 

The  Bible,       .......  370 

Translations,         ......  372 

The  English  Translation  of  the  Bible— I,     .            .            .  373 

II,           .            .  376 

The  Old  English  Bible 378 

Easter  Day,           .            .                         ...  382 

The  World  is  not  Eternal.     .  .  .  .  .383 

Year  and  Day  of  Christ's  Crucifixion,     .            .            .  386 

The  Date  of  the  Crucifixion,              ....  394 

Day  of  the  Crucifixion,                  .                         .            .  395 

Inspiration,      .......  398 

Letter  to  Amzi  Dodd,       .....  400 

Inerrant  or  Infallible  Bible,                ....  401 

Sermons,                ...                        .  402 

Religious  Forms,        ......  403 

Danger  of  Abrogating  Religious  Forms,            .            .  405 
The  Sabbath  and  Sunday,     .            .            .            .            .407 

On  the  Existence  of  a  God,          ....  422 

Esoteric  Thoughts  on  Religion  and  Religionism,    .            .  423 


PREFACE. 


The  death  of  my  father,  Joseph  P.  Bradley,  on 
January  22,  1892,  placed  in  my  hands  as  his  sole 
executor,  all  his  papers  and  MSS.,  a  large  and  varied 
collection.  Appreciating  its  value  and  importance,  I 
have  been  engaged  for  some  years  in  examining  and 
arranging  it  in  convenient  form,  and  after  submission 
to  several  distinguished  and  learned  friends  of  my 
father,  I  have,  at  their  earnest  solicitation,  under- 
taken to  gather  together  those  heretofore  unpublished 
and  unspoken  thoughts  of  his,  which  he  habitually 
wrote  down  in  all  manner  of  memoranda,  record  and 
common-place  books,  as  they  became  settled  convic- 
tions of  his  mind.* 

To  these  I  have  added  such  public  addresses  and 
lectures  as  seem  pertinent  to  such  a  collection.  But  I 
have  endeavored  to  eliminate  all  strictly  legal  sub- 
jects,! except  the  lecture  before  the  law  students  of 
the  University  of  Pennsylvania,  it  being  the  purpose 
of  this  volume  to  record  in  a  permanent  way  his  ac- 
quisitions in  other  departments  of  thought  than  the 
law.  His  legal  reputation  will  be  judged  by  his  opin- 


*  See  essay,  "Experience  or  Self  Improvement." 
t  8«e  note  to  Preface. 


Vlii  PREFACE. 

ions  from  9th  Wallace  to  141st  United  States,  which, 
in  the  language  of  Chief  Justice  Fuller,  "constitute  a 
repository  of  statesman-like  views  and  of  enlightened 
rules  in  the  administration  of  justice,  resting  upon  the 
eternal  principles  of  right  and  wrong,  which  will 
never  pass  into  oblivion." 

In  presenting  these  thoughts  of  Mr.  Justice  Bradley, 
it  should  be  borne  in  mind,  therefore,  that  they  include 
only  such  as  are  appropriate  to  a  collection  of  miscel- 
lanies. Much,  probably  three-quarters,  of  the  time 
occupied  in  studies  distinct  from  those  incident  to  the 
prosecution  of  his  profession,  was  devoted  to  mathe- 
matics, his  favorite  subject,  and  the  results  of  his 
thoughts  and  work  in  that  department  of  science  are 
found  recorded  in  many  places,  whole  blank  books 
being  filled  and  reams  of  paper  covered  with  solutions 
and  discussions  of  various  problems,  indicating  pro- 
found knowledge  of  and  ffl.mi1ia.riiy  with  the  principles 
of  astronomical,  geometrical  and  physical  mathe- 
matics. But  the  very  nature  of  the  work  is  such  as 
to  preclude  its  introduction  into  these  pages.  Still 
certain  entries  in  his  "Records"  have  seemed  worthy 
of  preservation,  if  not  for  their  own  novelty,  at  least 
as  an  index  to  this  phase  of  the  mental  acquirements 
of  this  many-sided  man. 

That  these  studies  were  not  superficial,  but  deep 
and  thorough,  is  evidenced  by  an  examination  of  his 


PREFACE.  il 

correspondence,  in  which  is  found  the  letters  of  expert 
engineers,  practical  mechanics  and  even  college  profes- 
sors, soliciting  his  advice  and  his  judgment  on  mechan- 
ical and  scientific  devices  and  methods. 

It  is  evidenced,  also,  as  applied  in  his  dissection  of 
complicated  patent  litigation  before  the  Supreme 
Court  of  the  United  States,  in  -which  his  pre-eminence 
has  been  so  forcibly  maintained  by  that  leader  among 
great  American  patent  lawyers,  Mr.  George  Harding, 
of  Philadelphia,  who  says  :  "In  that  branch  of  law 
(patent),  as  a  judge,  he  has  never  been  surpassed,  if 
he  has  been  equalled.  No  matter  what  department  of 
the  arts  was  involved,  mechanics,  chemistry,  electricity 
or  steam  engineering,  he  mastered  the  subject." 

Still  another  subject  to  which  he  devoted  much 
time  and  labor  was  genealogy.*  To  a  complete  his- 
tory of  his  own  family,  with  all  its  ramifications  in 
this  country,  involving  a  large  correspondence  and 
personal  inspection  of  old  town  records  and  docu- 
ments in  Connecticut,  he  added  the  compiling  of  the 
history  of  his  wife's  family  and  connections  (Horn- 
blowers,  Burnets,  Gouverneurs,  etc.),  besides  the  records 
of  many  collateral  branches,  all  duly  preserved  in 
MSS.,  necessitating  that  manual  and  mental  labor 
and  application  that  so  astonished  those  who  only 
knew  him  by  his  work  as  lawyer  and  judge.  As  his 


•The  Bradley  Family  of  Pairfield."      Published   privately  in   Newark, 
I.  J.,  1894. 


±  PREFACE. 

friend  and  eulogist,  Hon.  Cortlandt  Parker,  says  :  "I 
am  free  to  say  that  it  has  not  ever  happened  to  me  to 
meet  a  man  informed  on  so  many  subjects  entirely 
foreign  to  his  profession,  and  informed  not  slightly  or 
passably,  but  deeply— as  it  seemed,  thoroughly  on 
them  all.  Literature,  solid  or  light,  in  poetry  or 
prose;  science;  art;  history,  ancient  and  modern; 
political  economy ;  hieroglyphics ;  modern  languages, 
studied  that  he  might  acquaint  himself  with  great 
authors  in  their  own  tongues  ;  the  Hebrew  and  kindred 
tongues,  that  he  might  perfect  himself  in  biblical  study; 
mathematics,  in  knowledge  of  which  he  was  excelled 
by  few — all  these  were  constantly  subjects  of  his 
study." 

It  was  this  all-absorbing  thirst  for  knowledge,  this 
determination  to  master  and  digest  whatever  subject 
came  under  his  observation,  that  forced  him  to  devote 
his  every  hour  to  some  new  acquisition,  and  yet  with- 
out detriment  to  his  reputation  and  obligations  as 
an  occupant  of  that  great  and  laborious  office  which 
he  held.  It  is  fortunate  that  he  has  left  us  some 
monuments  of  all  that  study,  of  that  great  intellect. 
Posterity  may  justly  accord  him  that  niche  in  the 
history  of  the  Supreme  Court  to  which  he  is  entitled. 
This  record  will  preserve  in  some  small  degree  the 
results  of  those  hours  of  midnight  toil— though  to  him 
a  pleasure — which  only  his  family  knew  of,  and  which 
it  would  be  criminal  to  consign  to  the  waste-paper 
basket. 


PREFACE.  XI 

Previous  to  Mr.  Justice  Bradley's  ascending  the 
Bench  in  1870,  he  had  for  thirty  years  practiced  law 
in  Newark,  N.  J.  While  thus  prosecuting  his  profes- 
sion, he  was  not  neglecting  his  duties  as  a  citizen  or 
refusing  the  benefit  of  his  wide  influence  and  know- 
ledge to  religious,  educational  and  philanthropical 
organizations  or  objects.  On  the  contrary,  he  was 
an  active  participant,  as  officer  or  director,  in  financial 
or  other  business  corporations,  and  the  frequent  ad- 
viser in  the  affairs  of  educational  institutions,  as 
trustee  or  otherwise.  Always  pronounced,  but  not 
extreme  in  his  views,  he  was  called  on  to  address  his 
fellow-citizens  whenever  the  necessities  of  the  emer- 
gency seemed  to  require  the  peculiarly  forceful  and 
thoughtful  presentation  of  a  serious  public  question, 
with  which  his  speeches  are  imbued. 

We  have,  therefore,  included  some  few  of  these 
addresses,  as  an  illustration  of  that  force  which  made 
him  a  power  in  the  community.  Then,  turning  to 
another  mental  characteristic,  we  present  some  speci- 
mens of  his  religious  and  philosophical  essays  and 
discourses— a  department  in  which  he  was  most  happy 
in  conveying  his  ideas  to  an  audience,  imparting  life 
and  interest  to  an  otherwise  heavy  subject.  With 
these  there  are  intermingled  certain  miscellaneous  say- 
ings, exhibiting  the  versatility  of  his  mind  and  accom- 
plishments. In  truth,  he  was  the  personification  of 


XU  PREFACE. 

Bacon's  famous  epigram :  "  Reading  maketh  a  full 
man ;  conference,  a  ready  man,  and  writing,  an  exact 
man." 

I  also  include  in  these  pages  the  secret  history  of 
the  conferences  of  the  U.  S.  Supreme  Court,  in  the 
form  af  a  "  Statement  of  Facts,"  signed  by  the  major- 
ity of  the  Court,  relating  to  the  re-hearing  and  final 
decision  of  the  "  Legal  Tender  "  cases,  in  1870.  This 
document,  now  published  for  the  first  time,  should 
emphatically  dispose  for  all  time  of  the  erroneous  and 
unjust  aspersions  cast  by  some  writers  and  publicists 
upon  the  honor  and  action  of  the  Court  at  that  time. 

CHARLES   BRADLEY. 
NEWARK,  N.  J.,  1900. 


NOTE. — Further  reflection  has  produced  the  conviction  that  two  paper* 
on  the  judicial  career  of  Mr.  Justice  Bradley  could  be  appropriately  inserted 
in  these  pages,  and  it  is  with  undisguised  pleasure  that  I  have  introduced 
them  at  the  beginning  of  the  volume. 

The  first,  entitled  "The  Work  of  Mr.  Justice  Bradley,"  by  William 
Draper  Lewis,  Associate  Editor  of  The  American  Law  Register  and  Review, 
of  Philadelphia,  Pa.,  and  the  second,  "  Dissenting  Opinions— Mr.  Justice 
Bradley,"  by  A.  Q.  Keasbey,  of  Newark,  N.  J. 

To  both  of  these  gentlemen— the  latter  having  since  passed  away — I 
publicly  acknowledge  the  deep  sense  of  my  obligations  and  gratitude. 


JOSEPH  P.  BRADLEY. 


Joseph  P.  Bradley  was  born  March  14,  1813,  at 
Berne,  Albany  County,  N.  Y.  His  ancestors  for  gener- 
ations had  been  farmers  and,  his  father,  Philo  Bradley, 
followed  in  their  footsteps.  Hence  his  early  years 
were  passed  in  the  laborious  but  healthful  duties  of  a 
farmer's  son.  His  early  schooling  consisted  of  a  few 
months  in  the  winter  of  each  year  at  the  country 
school-house,  but  his  natural  aptitude  for  learning 
soon  exhibited  itself  so  strongly  that  the  attention  of 
the  Reformed  Dutch  minister  of  the  parish  was  attrac- 
ted to  him,  and  through  his  instrumentality  he  was 
afforded  the  assistance  of  the  church  in  obtaining  a 
college  education.  After  a  short  period  spent  in  teach- 
ing school  for  the  purpose  of  raising  a  little  money, 
and  under  the  tutelage  of  Mr.  Myers,  the  minister 
above  referred  to,  he  prepared  for  entering  Rutgers 
College,  an  institution  identified  with  the  Dutch 
Church,  at  New  Brunswick, N.  J.  Joining  the  freshman 
class  in  September,  1833,  he  soon  found  himself  able 
to  enter  the  class  above,  and  hence  became  a  member 
of  the  famous  class  of  1836. 

After  graduation  he  secured  the  position  of  Prin- 
cipal of  the  Millstone,  N.  J.,  Academy,  but  not  long 
after  he  was  persuaded  by  two  of  his  class-mates- 
Frederick  T.  Frelinghuysen  and  Cortlandt  Parker— to 
go  to  Newark,  N.  J.,  where  they  resided,  and  accept  a 
position  in  the  office  of  Mr.  Archer  Gifford,  a  leading 
lawyeY  and  at  the  time  Collector  of  the  Port.  Arriv- 
ing in  Newark,  November  2,  1836,  he  immediately 


WRITINGS. 

:  -Gi&ttd!s;-offiCe  and  began  the  study  of 
law.  The  salary-  of  his  office  as  Inspector  of  Customs 
was  sufficient  to  defray  his  expenses  until  his  admis- 
sion to  the  Bar,  in  November,  1839.  In  May,  1840, 
he  formed  a  business  connection  with  Mr.  John  P. 
Jackson,  and  from  that  time  he  had  constant  employ- 
ment in  his  profession. 

Marrying  in  October,  1844,  Mary,  the  youngest 
daughter  of  the  late  Chief  Justice  Hornblower,  of  New 
Jersey,  his  home  became  the  centre  of  a  wide  circle  of 
friends. 

Devoting  himself  assiduously  to  his  profession,  his 
ability  and  force  soon  made  themselves  felt  and  his 
services  were  sought  after  by  the  most  powerful 
private  and  corporate  interests  of  the  State,  until  he 
became,  admittedly,  the  leader  of  the  Bar  in  New 
Jersey,  and  through  his  frequent  appearance  in  the 
courts  of  the  United  States,  earned  even  a  wider,  if 
not  a  national  reputation. 

The  opportunity  presenting  itself,  President  Grant's 
attention  was  called  to  his  pre-eminent  fitness  for  the 
vacancy  then  existing  on  the  Bench  of  the  Supreme 
Court  of  the  United  States,  and  on  February  7,  1870, 
he  nominated  him  as  an  Associated  Justice  of  that 
court,  and  his  nomination  was  confirmed  by  the 
United  States  Senate,  March  21,  1870. 

At  the  mature  age  of  57  years,  and  after  thirty 
years  of  active  and  continued  pursuit  of  his  profession, 
leavened  with  intellectual  diversions  in  almost  ever}' 
scholarly  path,  broadened  by  foreign  travel  and  in 
robust  health,  he  was  singularly  well  prepared  for  the 
burdens  of  his  office  and  the  discharge  of  its  duties 
and  responsibilities. 


BIOGRAPHY. 

It  was  fortunate  that  it  was  so,  for  his  associates, 
with  whom  he  must  cross  swords  in  judicial  confer- 
ence, were  concededly  distinguished  for  their  ability 
and  reputation.  Salmon  P.  Chase — then  Chief  Justice 
—Noah  H.  Swayne,  Samuel  Nelson,  Nathan  Clifford, 
David  Davis,  Samuel  F.  Miller  and  Stephen  J.  Field, 
all  tested  in  the  crucible  of  public  life  and  experience — 
these  were  the  men  on  whom  he  must  impress  the 
stamp  of  his  power  and  force,  or  sink  into  judicial 
obscurity.  That  they  were  "  foemen  worthy  of  his 
steel,"  he  was  proud  to  acknowledge.  That  he  ob- 
tained their  recognition  as  a  peer  his,  "Judicial  Record" 
demonstrated.  And  the  questions  quickly  coming 
before  the  Court,  as  the  result  of  the  war  and  recon- 
struction periods,  soon  gave  him  the  opportunity  to 
establish  his  position  on  the  Bench — a  status  never 
after  questioned,  even  amid  the  changing  personnel  of 
the  court. 

Immediately  removing  from  Newark,  he  purchased 
the  large  residence,  No.  201  I  Street,  built  by  Stephen 
A.  Douglas  and  occupied  by  him  till  his  death.  Here 
he  lived  for  twenty-two  years,  dispensing  a  generous 
hospitality  and  enjoying,  when  opportunity  permitted, 
the  social  life  of  the  Capital.  Many  old  friends  sur- 
rounded him.  In  the  Executive  Department  of  the 
Government,  George  M.  Robeson,  Secretary  of  the 
Navy,  was  an  intimate  and  welcome  guest  at  his 
house.  In  the  Legislative  Department  were  Senators 
John  P.  Stockton  and  Frederick  T.  Frelinghuysen, 
both  old  friends  and  contemporaries  at  the  Jersey  Bar, 
while  the  latter,  more  than  a  friend,  had  been  his 
companion  since  college  days.  Thus,  he  and  his  family 
were  soon  at  home  in  Washington  and  quickly  became 
identified  with  its  interests  and  life. 


4  MISCELLANEOUS    WRITINGS. 

The  circuit  allotted  to  him,  the  fifth,  embracing  all 
the  Southern  States,  except -.the  Virginias  and  Caro- 
linas,  necessitated  his  holding  Court  in  their  principal 
cities  every  spring,  and  the  long  journeys  in  warm 
weather  were  a  severe  tax  on  his  strength.  Notwith- 
standing, for  ten  years  (until  his  circuit  was  changed), 
he  never  failed  every  year  to  visit  and  hold  Court  in 
either  Galveston,  San  Antonio,  Houston  and  Dallas, 
Texas;  New  Orleans,  Jackson,  Mobile,  Jacksonville, 
Savannah  or  Atlanta,  usually  alternating  yearly  be- 
tween the  Texas  cities  and  New  Orleans,  and  the 
others  named. 

Of  course,  the  labor  incident  to  this  circuit  work 
was  very  great,  but  his  previous  knowledge  of  the 
Civil  Law,  and  French  and  Spanish  jurisprudence, 
enabled  him  to  dispatch  it  rapidly,  and  as  he  had 
reason  to  know,  to  the  great  satisfaction  of  the 
Southern  Bar.  This  large  jurisdiction  widened  his 
acquaintance  and  was  the  means  of  creating  many 
warm  friendships.  In  fact  the  universal  courtesy 
which  was  extended  to  him  by  the  citizens  of  the 
South,  was  a  source  of  great  gratification  to  him,  and 
lie  was  profuse  (in  the  family  circle)  in  his  expressions 
of  gratitude  to  the  gentlemen  who  invariably  enter- 
tained him  at  their  houses.  This  was  especially  pleas- 
ing in  view  of  his  well-known  Northern  antecedents 
and  opinions,  and  the  writer  has  personal  knowledge 
of  his  keen  regrets,  when  his  assignment  to  the  Third 
Circuit  became  proper. 

For  fifteen  years  or  more,  he  spent  his  summers  at 
Stowe,  Vermont— a  small  village  situated  in  the  heart 
of  the  Green  Mountains — the  climate  of  which  was 
most  healthful  and  invigorating,  and  he  became  de- 


BIOGRAPHY.  5 

votedly  attached  to  it.  Generally  going  North  late  in 
June,  he  would  pay  short  visits  to  his  sons  in  Newark, 
and  his  daughter  in  Paterson,  N.  J.,  and  then  stopping 
at  "The  Kaaterskill "  in  the  Catskills,  where  he 
enjoyed,  especially,  the  companionship  of  his  friend 
George  Harding,  of  Philadelphia,  he  would  make  his 
way  to  Stowe  and  remain  till  October,  returning 
directly  to  Washington  to  be  present  at  the  opening 
of  the  Fall  Term  of  Court.  At  Stowe  it  was  that 
he  had  time  and  leisure  to  pursue  so  many  of  his  favor- 
ite studies,  and  indulge  his  literary  taste  to  the  full. 
Taking  with  him  his  choice  books,  he  surrounded  him- 
self with  the  atmosphere  of  literature,  and  to  my 
mind,  passed  the  happiest  days  of  his  later  life. 

Always  a  great  reader  and  lover  of  books,  Judge 
Bradley  had  early  accumulated  a  large  and  varied 
library,  embracing  nearly  every  department  of  litera- 
ture, which  was  a  source  of  continual  pleasure  and 
pride  to  him.  By  constant  additions,  this  library  be- 
came very  great,  numbering  about  six  thousand  vol- 
umes. In  addition,  his  law  library,  aggregating  some 
ten  thousand  volumes,  filled  his  home  to  over-flowing. 
It  is  interesting  to  know  that  this  law  library  was 
secured  by  the  Prudential  Insurance  Company,  of 
Newark,  N.  J.,  and  is  maintained  complete  and  entire, 
even  to  the  pictures  on  the  walls,  in  that  company's 
magnificent  structure  in  that  city,  erected  on  land 
owned  by  Judge  Bradley  for  many  years,  and  sold  to 
it  three  years  before  his  death. 

Socially,  Judge  Bradley  was  a  charming  compan- 
ion and  notwithstanding  the  inroads  on  his  time, 
enjoyed  the  refined  surroundings  of  his  position.  Thus 
officially  and  personally  brought  into  contact  with 


6  MISCELLANEOUS  WRITINGS. 

men  distinguished  in  the  various  pursuits  of  life,  his 
social  life  was  most  interesting.  A  characteristic 
habit  consisted  of  his  drawing  a  diagram  of  the  table, 
immediately  on  his  return  from  a  dinner,  with  the 
names  and  seats  of  all  the  guests,  adding  a  descriptive 
line,  explanatory  of  the  occasion,  and  pasting  these 
cards  in  a  book,  which  the  writer  now  possesses, 
embracing  a  record  of  one  hundred  and  eighty-nine 
dinners  and  including,  of  course,  only  formal  entertain- 
ments. This  unique  collection,  covering  a  period  of 
twenty  years,  gives  an  idea  of  his  social  surroundings, 
now  interesting  to  peruse.  Of  course,  the  judicial 
element  prevails  in  the  guests  at  most  of  the  boards, 
and  varies  with  the  changed  personnel  of  the  Court 
and  Bar  of  the  country  during  that  period,  as  well  as 
the  White  House  circles  under  five  administrations — 
Grant,  Hayes,  Arthur,  Cleveland  and  Harrison.  And 
interspersed  with  distinguished  diplomatic,  army  and 
naval  names,  are  those  of  many  known  throughout  the 
world  for  their  political,  scientific  or  literary  achieve- 
ments. Here  we  see  him  seated  next  to  George  Ban- 
croft, Lord  Houghton,  Lord  Coleridge ;  there,  at  the 
same  board  with  Archdeacon  Farrar,  Dr.  Oliver  W. 
Holmes,  James  Russell  Lowell  and  Lord  Herschell ; 
again,  the  guests  include  Robert  C.  Winthrop  and 
Mr.  Joseph  Chamberlain.  And  so  on,  either  at  his 
own  table  or  as  the  guest  of  others.  Such  were  the 
character  of  the  men  whom  he  met  and  talked  with, 
and  with  his  receptive  mind  the  wealth  and  variety  of 
information  absorbed  can  be  better  imagined  than 
described.  And  thus  his  life,  though  laborious  to  a 
degree,  moved  pleasantly  along,  with  two  celebrated 
exceptions. 


BIOGRAPHY.  7 

Those  were  occasions  which  tested  the  metal  that 
was  in  him,  and  his  character  stood  the  strain  with- 
out developing  a  flaw.  I  refer  to  the  Legal  Tender 
Decision  and  the  Electoral  Commission.  Subjected  to 
the  most  unjust  and  cruel  criticism,  charged  by  ignor- 
ant journalists  with  almost  every  crime  in  the  calen- 
dar, his  nervous  and  sensitive  nature  suffered  acutely. 
But  the  independent  and  self-reliant  forces  of  his 
character — which  had  made  him  what  he  was — now 
stood  him  in  good  stead,  and  conscious  of  the  recti- 
tude of  his  motives  and  with  a  firm  faith  in  the 
correctness  of  his  official  opinions  and  acts,  he  cour- 
ageously faced  all  detraction,  all  threats,  all  denunci- 
ation, and  stood  like  a  rock  against  the  impotent 
assaults  of  enraged  and  disappointed  partisans. 

The  recent  death  of  Mr.  Justice  Field,  who  was  his 
colleague  on  the  Supreme  Court  Bench  at  the  time, 
releases  me  from  a  silence  imposed  by  Judge  Bradley 
and  Judge  Strong,  and  enables  me  to  introduce  in 
these  pages  a  "  Statement  of  Facts  "  relating  to  the 
order  of  the  Supreme  Court  of  the  United  States  for  a 
re-argument  of  the  Legal  Tender  question  in  April, 
1870,  prepared  by  the  majority  of  the  Court  at  that 
time — which  is  an  absolute  refutation  of  the  unjust 
imputations  cast  upon  his  action  in  that  matter  by 
many  writers,*  some  of  whom  were  inspired  by  par- 
tisan antipathy  and  others  by  ignorance  of  the  facts, 
and  which  have  gained  currency  by  reason  of  their 
long  exemption  from  challenge.  As  introductory  to 

*  "The  life  of  S.  P.  Chase."  by  J.  W.  Shuckera,  Chapter  XXVIII. 

Paul  Leicester  Ford's  edition,  "The  Federalist."  Introduction,  p 
XVIII. 

"Congressional  Government,"  by  Woodrow  Wilson.  Introductory,  p- 
XXXVIII. 


8  MISCELLANEOUS   WRITINGS. 

the  "Statement"  I  have,  with  the  author's  consent, 
quoted  largely  from  a  letter  of  Senator  George  F. 
Hoar,  of  Massachusetts,  refuting  the  charge  that 
President  Grant  had,  by  the  appointment  of  Judges 
Bradley  and  Strong,  "  packed  "  the  Supreme  Court  for 
the  purpose  of  securing  the  reversal  of  the  Court's 
decision  in  the  case  of  Hepburn  vs.  Griswold,  other- 
wise known  as  the  "  Legal  Tender  "  case. 

The  second  occasion  referred  to — the  Electoral 
Commission — is  briefly  touched  on  by  himself  in  the 
accompanying  volume.  But  his  account  gives  little 
idea  of  the  bitterness  of  feeling  then  existing,  and  the 
severe  ordeal  through  which  he  passed  and  of  which  I 
have  personal  knowledge.  Having  attended  the  Col- 
umbian Law  School,  in  Washington,  during  the  winter 
of  1876  and  1877,  I  was  fully  aware  of  the  suppressed 

NOTE. — Prof.  Woodrow  Wilson,  having  had  his  attention  called, 
by  the  editor,  to  the  inaccuracy  of  his  statement,  wrote  the  following 
very  manly  and  satisfactory  acknowledgment : 

PRINCETON,  N.  J.,  December  20,  1900. 
MR.  CHARLES  BRADLEY,  Newark,  N.  J.: 

MY  DEAR  SIR  : — I  very  much  appreciate  your  letter  of  the  six- 
teenth. I  have  for  some  time  been  convinced  of  the  unfair  imputa- 
tions of  the  passage  to  which  you  refer  in  my  "Congressional 
Government,"  but  I  have  never  had  an  opportunity  of  revising  the 
text  since  its  publication.  It  has  many  times  been  reprinted,  but  no 
change  has  been  made  in  any  part  of  it  since  its  original  appearance. 
Stereotyped  plates  are  regarded  by  publishers  as  a  very  rigid  finality. 
The  change  necessary  in  that  passage  would  be  very  considerable, 
and  I  have  never  had  a  chance  to  make  it.  I  very  much  hope  that 
before  very  long  I  shall  be  allowed  to  revise  at  least  that  part. 

Thanking  you  again  for  thus  taking  it  for  granted  that  I  wished 
to  know  and  speak  the  truth, 

Very  sincerely  yours, 

WOODROW  WILSON. 


BIOGRAPHY.  9 

excitement  which  pervaded  all  classes,  and  when 
finally  my  father  was  chosen  to  complete  the  organiz- 
ation of  the  commission,  he,  as  well  as  all  of  his 
family,  keenly  regretted  that  the  lot  had  fallen  to  him, 
thereby  becoming  (unjustly),  in  a  sense,  the  final 
arbiter.  I  say  unjustly  because  he  was  by  belief,  by 
association,  by  past  history,  as  staunch  a  Republican 
as  any  of  those  members  of  the  Commission  who 
were  deliberately  selected  by  reason  of  their  known 
political  predilections.  And  yet,  he  alone  was  expected 
to  sink  all  political  bias  and  act  the  judge  merely. 
He  realized  fully  the  delicate  position  he  occupied,  and 
foresaw  that  whatever  course  he  took  would  subject 
him  to  criticism.  But  that  he  would  be  assailed  with 
all  the  venom  of  a  serpent,  that  he  would  be  charged 
openly  with  corruption,  that  he  would  be  threatened 
with  bodily  injury,  aye,  even  to  the  taking  of  his  life— 
this  he  did  not  forsee  nor  believe  possible.  And  yet 
such  was  the  case.  As  the  proceedings  of  the  commis- 
sion advanced  and  the  probable  outcome  was  seen, 
the  fury  of  the  Democratic  press,  led  by  that  scorpion 
of  journalism,  the  New  York  Sun,  knew  no  bounds. 
And  this  continued  vilification  soon  affected  the  excit- 
able minds  of  irresponsible  individuals,  until  he  was 
inundated  by  a  flood  of  vulgar  and  threatening  com- 
munications which  would  have  unnerved  a  less  brave 
and  courageous  man. 

He  soon  ceased  to  either  read  the  press  or  his  mail 
and  absolutely  declined  to  see  or  converse  with  the 
horde  of  callers  at  his  house.  As  a  matter  of  fact,  he 
was  practically  a  hermit  from  the  hour  he  left  the 
sittings  of  the  commission  one  day  until  it  met  the 
next,  even  his  family  seeing  him  only  at  meals.  As 


10  MISCELLANEOUS   WRITINGS. 

an  inmate  of  his  house  during  the  whole  period  of  the 
commission's  existence,  I  speak  with  authority  when 
I  say  that  the  reports  of  his  consultations  with  prom- 
inent Republicans  and  members  of  the  commission  are 
false— false  not  only  as  to  the  fact,  but  the  inferences 
which  have  been  drawn  from  these  false  reports,  and 
especially  that  venomous  statement  that  he  had  read 
an  opinion  favorable  to  Mr.  Tilden  in  the  Oregon  case 
to  one  or  two  of  his  Democratic  associates,  but  that 
over-night  he  had  been  closeted  with  Republican  mag- 
nates and  came  into  Court  in  the  morning  and  voted 
and  read  an  opinion  in  favor  of  Mr.  Hayes.  This 
statement  having  been  credited  to  Judge  Field,  whether 
correctly  or  not,  he  called  upon  that  judge  to  either 
prove  it  or  retract  it.  Judge  Field,  then  in  California, 
wrote  him  saying  that  his  remarks  had  been  misinter- 
preted and  exaggerated,  and  that  he  had  said  "noth- 
ing derogatory  to  his  honor  or  integrity." 

That  he  gave  the  most  conscientious  consideration 
to  every  point  raised,  and  that  his  conclusions  were 
irresistibly  correct,  is  best  evidenced  by  his  opinions 
elsewhere  printed  in  this  volume.  That  he  exhibited 
a  courage  not  surpassed  by  any  battle-field  hero  can 
only  be  appreciated  by  those  who  knew  personally 
the  bitterness  of  the  time.  That  the  threats  against 
his  life  were  not  idle,  and  that  the  anxiety  of  his 
family  for  his  personal  safety  was  not  exaggerated, 
became  evident  when  we  found  that  detectives,  with- 
out solicitation  or  his  knowledge,  had  been  detailed 
by  the  then  Secretary  of  the  Navy  to  guard  his  house 
and  his  person.  Fearless  in  the  execution  of  the  trust 
reposed  in  him,  he  had  the  satisfaction  of  living  long 
enough  to  see  his  conduct  approved  by  all  fair-minded 


BIOGRAPHY.  11 

men  and  receive  the  sanction  of  popular  opinion  in 
the  condemnation  of  Mr.  Tilden's  "cypher  despatch" 
methods  and  that  gentleman's  permanent  retirement 
to  private  life.  But  amongst  the  many  evidences  of 
endorsement  received  by  him  from  all  over  the  country 
none  appealed  to  him  more  than  a  testimonial  of 
confidence  and  approval  tendered  him  by  the  leading 
professional  and  business  men  of  his  old  home- 
Newark,  N.  J.  (Note).  Blessed  with  great  vigor  of 
body  and  mind,  he  rounded  out  his  long  career  with 
fullness  and  satisfaction,  ever  growing  in  judicial 
strength  and  reputation. 

The  death  of  his  eldest  son,  William  H.  Bradley,  in 
1889,  at  the  time  an  active  lawyer  in  his  old  home 
at  Newark,  N.  J.,  was  a  great  blow,  but  he  showed 
no  weakening  of  his  powers  until  in  the  spring  of 
1891,  when  an  attack  of  "la  grippe"  left  him  much 
enfeebled.  He  failed  to  recuperate  his  strength  that 
summer  and  returned  to  Washington  in  October  much 
debilitated.  He  took  his  seat  on  the  Bench,  however, 
at  the  opening  of  Court,  but  in  a  few  weeks  was 
compelled  to  retire  by  a  general  breaking  up  of  his 
system.  Fully  realizing  his  approaching  end,  he 
calmly  prepared  himself  and  his  affairs  for  the  inevit- 
able, and  finally,  peacefully  passed  away  early  on  the 
morning  of  January  22,  1892,  surrounded  by  all  his 
family.  Had  he  lived  till  March  14,  he  would  have 
been  79  years  old. 

A  man  of  the  strongest  personality — of  deep  feeling, 
tho'  undemonstrative— his  friendships  were  sincere  and 
binding,  and  his  family  relations  were  most  delightful. 

And  so  ended  a  useful  Christian  life.  May  we 
emulate  his  sterling  worth  and  character  and  strive 
to  make  as  good  an  American  citizen. 


12  BIOGRAPHY. 

(NOTE.) 

•V  NEWARK,  N.  J.,  March  7,  1877. 

"HON.  JOSEPH  P.  BRADLEY, 

"Justice  U.  S.  Supreme  Court. 

"DEAR  SIR: — Your  friends  and  neighbors  in  this  community 
have  given  you  their  sincere  sympathy  in  your  discharge  of  the  duties 
imposed  upon  you  as  the  arbiter  of  the  Electoral  Commission. 

"No  weightier  responsibility  was  ever  incurred  by  any  citizen 
than  rested  upon  your  casting  vote,  but  your  course  has  been  watched 
by  us  with  more  of  affectionate  interest  than  of  anxiety. 

"  We  had  a  life-long  assurance  that  whatever  of  so-called  polit- 
ical bias  you  might  make  manifest  would  be  only  the  expression  of 
deep-rooted  convictions  of  the  true  interpretations  of  the  Constitu- 
tion and  of  devotion  to  republican  government  in  its  essence  and 
purity. 

"We  offer  you  our  heart-felt  congratulations,  mostly  for  this, 
that  it  has  given  to  you  to  distinguish  a  just  line  between  the  power 
and  right  of  the  States  to  choose  a  President  and  the  unholy  claim 
of  one  branch  of  Congress  to  usurp  that  power. 

"  We  are  aware  that  in  your  action  you  have  incurred  virulent 
partisan  censure.  The  road  to  fictitious  greatness,  to  pretense 
instead  of  reality,  lay  in  the  other  direction,  The  trial  must  have 
been  severe,  as  the  temptations  you  avoided,  and  the  difficulties  in 
your  path  were  great,  we  the  more  congratulate  ourselves  that 
Newark  and  New  Jersey,  in  the  persons  of  yourself  and  Senator 
Frelinghuysen,  have  had  so  large  and  noble  an  office  in  the  adjust- 
ment of  a  controversy  so  solemn  as  that  of  the  right  of  a  State  to 
vote  for  the  Presidency  by  its  own  methods  and  independent  of  the 
dictation  and  surveillance  of  Congress.  The  tendency  of  the  House 
of  Representatives  to  usurp  judicial  and  executive  functions  is  a 
danger  far  greater  than  any  mere  change  of  party  rule. 

"  But  it  is  not  our  purpose  to  discuss  the  great  issue  you  have 
already  adjucated.  We  only  desire  to  say  to  you  in  deep  sincerity, 
that  here  at  your  home,  where  you  have  gone  in  and  out  before  the 
people  for  many  years,  the  old  love  and  respect  are  builded  up 
stronger  by  a  new  admiration  of  firmness  in  judgments  that  will  be 
historic  as  they  are  heroic,  and  mark  an  era  in  the  Constitutional  law 
of  our  beloved  country. 


BIOGRAPHY. 


13 


"With   all  wishes  for  your   health 
your  attached  friends: 

••MARCUS  L.  WARD. 
-JOSEPH  A.  HALSEY. 
••SILAS  MERCHANT. 
"AMZI  DODD. 
"W.  A,  WHITEHEAD. 
"Tnos.  T.  KINNEY. 
"J.  WHITEHEAD. 
••ABRM.  COLES. 
"CHARLES  S.  GRAHAM. 
••JOSEPH  WARD. 
••ISAAC  A.  ALLING. 
"MARTIN  R.  DENNIS. 
"JOHN  H.  KASE. 
••SAMUEL  ATWATER. 
"WILLIAM  A.  NEWELL. 
"O.  F.  BALDWIN. 
"H.  N.  CONGAR. 
"!RA  M.  HARRISON. 
"  A.  M.  WOODRUFF. 
"N.  PERRY. 
"THEO.  MACKNET. 
"FRANCIS  MACKIN. 
"J.  D.  POINIER. 
"WILLIAM  WARD. 
••THOMAS  B.  PEDDIE. 

"BETHUEL   L.    DODD. 

"W.  A.  MEYER. 
"OBA.  WOODRUFF. 
"WILLIAM  H.  KIRK. 


and   happiness,  we   remain 

-LEWIS  C.  GROVER. 
"S.  H.  PENNINGTON. 

"JOSEPH   N.   TUTTLE. 

"DANIEL  DODD. 
"WILLIAM  B.  MOTT. 
••JOHN  C.  BEARDSLEY. 
"S.  G.  GOULD. 

"CORTLANDT   PARKER. 

"  P.  H.  BALLANTINE. 
"  A.  GRANT. 
"  H.  J.  POINIER. 
"WILLIAM  T.  MERCER. 
"  HENRY  J.  YATES. 
"  JAMES  H.  HALSEY. 
"  CHAS.  G.  ROCKWOOD. 
"A.  L.  DENNIS. 
••LEWIS  R.  DUNN. 

"THEO.    P.   HOWELL. 

"  JAMES  B.  PINNEO. 
"J.  M.  DURAND. 
"JOHN  R.  WEEKS. 
"  A.  Q.  KEASBEY. 
"JOHN  W.  TAYLOR. 
"  GEORGE  A.  HALSEY. 
"JOSEPH  COULT. 
••JOHN  HILL. 
"ELIAS  O.  DOREMUS. 
"SANFORD  B.  HUNT." 


THE  ''JUDICIAL  RECORD" 

OF  THB  LATK 

MR.    JUSTICE    BRADLEY. 


BY  WILLIAM  DRAPER  LEWIS, 
OF  PHILADELPHIA,   PA. 


The  death  of  Mr.  Justice  Bradley  removes  one  who, 
for  the  past  twenty-one  years,  has  been  a  member  of 
"the  ideal  tribunal."  No  one  but  his  fellow-judges, 
who  have  come  in  daily  contact  with  him,  can  rightly 
estimate  the  extent  of  the  influence  which  he  had  on 
the  development  of  jurisprudence ;  for  we  are  told 
that  it  is  in  the  consultation  room  that  merit,  learn- 
ing and  the  clearness  of  one's  ideas  are  best  tested. 
No  show  of  knowledge  which  one  does  not  possess, 
no  glitter  which  apes  ability,  can  long  deceive  those 
with  whom  we  are  engaged  in  a  common  intellectual 
labor.  And  yet,  even  if  we  did  not  have  the  testi- 
mony of  his  colleagues,  we  could  not  have  failed  to 
realize  the  weight  in  the  councils  of  a  court  which 
that  man  must  have  who,  like  the  late  Justice,  evinced 
in  his  written  opinions  such  an  intimate  acquaintance 
with  all  branches  of  the  common  and  constitutional 
law  of  his  own  country  and  with  the  judicial  systems 
of  continental  Europe,  and  who  showed  by  the  accur- 
acy of  his  citations  in  oral  statements  of  the  law 
during  the  argument  of  a  case,  the  wonderful  reten- 
tiveness  of  his  memory. 


16  MISCELLANEOUS   WRITINGS. 

The  members  of  the  profession  have  two  sources 
from  which  they  can  judge  a  judge ;  the  way  in  which 
he  conducts  the  business  of  the  court  while  on  the 
bench,  and  his  written  opinions.  The  first,  in  a  mem- 
ber of  an  appellate  court,  is  the  lesser  of  the  two  in 
importance,  and  yet  no  mention  of  the  late  Justice 
would  be  complete  without  some  notice  of  his  mar- 
vellous aptitude  for  what  one  may  call  "judicial 
business."  It  was  wonderful  to  see  the  quickness  and 
unfailing  accuracy  with  which  he  applied  abstract 
principles  of  law  to  the  concrete  cases  which  came  be- 
fore him  in  the  Circuit  Court.  The  highest  compli- 
ment which  a  Pennsylvanian  could  give  was  paid  to 
him  by  one  of  the  leading  members  of  the  bar  of  that 
State,  when  he  said :  "In  the  manner  of  Judge 
Sharswood,  Justice  Bradley  cleared  the  list." 

But  it  is  from  his  reported  opinions,  and  especially 
his  opinions  in  cases  involving  the  construction  of  the 
Constitution,  that  Mr.  Justice  Bradley  will  live  in 
history.  In  a  short  time,  so  quickly  do  we  forget  the 
minor  points  of  a  great  man's  work,  by  these  con- 
stitutional opinions  alone  will  he  be  judged.  Whether, 
as  time  passes,  that  judgment  will  become  more  or 
less  favorable,  depends  largely  on  whether  the  future 
members  of  the  Court  follow  his  conceptions  of  the 
true  meaning  of  the  important  clauses  of  the  Consti- 
tution. For  with  our  judiciary,  as  with  mankind  in 
general,  greatness  which  comes  from  "  ideas  "  endures 
only  so  long  as  those  ideas  influence  human  thought 
or  conduct. 

Nothing  will  show  us  more  clearly  the  point  of 
view  from  which  Mr.  Justice  Bradley  regarded  consti- 
tutional questions  than  an  analysis  of  some  of  the 


" JUDICIAL    RECORD."  17 

opinions  and  dissents  written  by  him  in  the  more  im- 
portant cases  which  came  before  the  Supreme  Court 
during  his  term  of  office.  To  examine  first : 

THE  SLAUGHTER  HOUSE  CASES.— Few  cases  have 
been  considered  by  the  Supreme  Court  with  a  more 
abiding  sense  of  their  importance ;  few  seem  to  be 
fraught  with  greater  peril  to  the  liberties  of  the  indi- 
vidual citizen ;  few  have  had  such  little  practical 
effect.  The  reason  for  this  will  probably  be  found  in 
the  fact  that  what  the  Court  actually  decided  was 
not,  as  a  constitutional  question,  of  great  importance. 
At  the  same  time,  the  opinion  of  the  Court  contained 
statements  of  constitutional  law  of  great  moment. 
But  to-day  the  dicta  of  the  minority  more  nearly 
represent  the  attitude  of  the  members  of  the  Supreme 
Bench  than  do  the  dicta  of  Mr.  Justice  Miller,  who 
spoke  for  the  majority  of  his  brethren.  That  the 
opinion  of  the  Court  went  beyond  what  was  actually 
necessary  for  the  decision  of  the  case  is  evident.  The 
majority  of  the  Court  held  that  the  Act  of  Louisiana, 
granting  to  a  corporation  the  monopoly  of  slaughter- 
ing cattle  over  a  territory  1,154  square  miles  in  ex- 
tent, and  containing  the  city  of  New  Orleans  and 
adjacent  territory,  was  constitutional.  The  business 
of  slaughtering  cattle,  the  Court  maintained,  was 
under  the  police  power  of  the  State,  and  the  act  was 
a  police  measure,  legitimately  framed  to  protect  the 
health  of  the  community.  Mr.  Justice  Bradley,  who 
was  among  those  who  delivered  a  dissenting  opinion, 
admitted  that  if  the  measure  was,  in  its  operation, 
well  suited  to  protect  the  health  of  the  community, 
there  would  be  no  doubt  of  its  constitutional^. 
He,  therefore,  agreed  with  the  majority  of  the  Court 


18  MISCELLANEOUS   WRITINGS. 

on  the  important  question  of  law  which  arose  in  the 
case — viz.:  whether  a  State  could  create  a  monopoly 
to  carry  out  its  health  laws  ;  but  he  differed  from  the 
majority  on  the  mixed  question  of  law  and  fact — 
whether  the  law  of  Louisiana  was  a  law  designed  to 
protect  the  health  of  the  people  of  New  Orleans.  He 
did  not  think  it  was,  but,  on  the  contrary,  considered 
the  law  as  establishing  a  monopoly  of  an  important 
industry,  without  one  iota  of  public  expediency  to 
recommend  it. 

In  the  opinion  of  the  Court,  however,  Mr.  Justice 
Miller,  after  stating  the  law  to  be  one  designed  to  pro- 
tect the  health  of  the  citizens  of  the  State,  went  on  to 
uphold  the  power  of  the  State  to  grant  monopolies. 
He  says  :  "  The  proposition  is,  therefore,  reduced  to 
these  terms  :  Can  any  exclusive  privileges  be  granted 
to  any  of  its  citizens  or  a  corporation  by  the  legis- 
lature of  a  State  ?  "  But,  curiously,  instead  of  dis- 
cussing the  power  of  the  legislature  to  grant  the 
exclusive  privilege  to  carry  out  its  police  laws,  he  goes 
into  the  whole  subject  of  monopolies,  and  upholds  the 
power  of  the  State  to  grant  monopolies  and  privileges 
generally.  It  is  this  power  that  Mr.  Justice  Bradley 
and  the  other  dissenting  Judges  vehemently  deny,  and 
it  is  in  connection  with  this  denial  that  the  late 
Justice  sets  forth  with  admirable  clearness  the  follow- 
ing conception  of  the  last  amendments  to  the  Consti- 
tution. These  amendments  declare  that  there  is  a 
citizenship  of  the  United  States,  and  they  protect  the 
rights  which  appertain  to  that  citizenship  from  en- 
croachment by  the  States.  The  rights  of  the  citizen 
are  the  rights  of  free-born  Englishmen.  One  of  the 
most  valuable  is  the  right  to  carry  on  any  trade  and 


"JUDICIAL  RECORD "  19 

occupation,  hampered  only  by  reasonable  restrictions. 
Furthermore,  depriving  a  man  by  legislative  enact- 
ment of  his  right  to  carry  on  a  particular  trade,  is 
not  only  interfering  with  his  right  as  a  citizen  of  the 
United  States,  but  also  deprives  him  of  his  liberty  and 
property  without  due  process  of  law.  This  latter 
contention  was  dismissed  without  argument  by  Mr. 
Justice  Miller.  In  his  lengthy  exposition  of  the  ques- 
tion of  "citizenship,"  however,  that  Justice  advanced 
a  radically  different  conception  of  the  amendments. 
He  thought  they  were,  as  a  matter  of  fact,  designed 
primarily  to  prevent  discriminations  by  the  State 
against  the  colored  man,  and,  in  their  construction, 
this  fact,  which  indicated  their  main  object,  should 
always  be  kept  in  view.  The  only  privileges  and 
immunities  which  were  protected  by  the  amendments 
were  those  which  affected  citizens  of  the  United  States 
as  such.  Citizenship  of  the  United  States  and  citizen- 
ship of  the  State  were,  in  his  view,  two  different 
things.  In  the  amendments  those  who  are  citizens  of 
the  States  are  pointed  out,  but  the  privileges  and 
immunities  of  such  citizenship  are  neither  defined  nor 
protected.  The  only  rights  which  are  protected  from 
the  encroachment  of  State  legislatures  are  the  priv- 
ileges of  the  citizen  of  the  United  States,  and  these  are 
those  which  belonged  to  the  citizens  of  every  national 
government.  As  an  instance  of  a  national  privilege 
is  mentioned  the  right  of  a  citizen  of  the  United 
States  to  go  to  the  seat  of  the  Federal  Government. 
The  rights  of  a  citizen  of  the  United  States  are  not 
the  rights  of  trade  and  commerce  within  a  State.  In 
fact,  we  can  deduce  from  Mr.  Justice  Miller's  opinion 
that  all  those  rights  which  are  exercised  solely  within 


20  MISCELLANEOUS   WRITINGS. 

the  State,  and  do  not  pertain  to  the  national  govern- 
ment, are  left  for  their  protection  to  the  discretion  of 
State  legislatures. 

We  hope  there  is  little  doubt  that  Mr.  Justice 
Bradley's  conclusion,  that  no  State  can  create  a  mon- 
opoly pure  and  simple,  would  be  adopted  to-day  by 
the  Court,  on  the  ground  that  granting  a  monopoly 
would  be  depriving  the  individual  of  his  right  to 
carry  on  a  lawful  calling,  which  right  is  his  by  virtue 
of  his  being  a  citizen  of  the  United  States,  and,  per- 
haps, also  on  the  ground  that  it  would  deprive  him 
of  his  property  and  liberty  without  due  process 
of  law. 

Certainly,  the  words  of  the  XIYth  Amendment,  as 
construed  by  Mr.  Justice  Miller,  do  not,  as  was  in- 
tended, add  any  additional  securities  to  our  liberties. 
The  United  States  was  a  nation  before  the  amend- 
ments ;  and  the  people  of  the  States  were  members  of 
that  nation,  and  as  such  each  had  the  right  which 
belongs  to  the  inhabitants  of  any  free  government  to 
go  to  the  seat  thereof,  travel  from  one  part  to 
another,  or  assemble  to  petition  for  redress  of  griev- 
ances. We  cannot  but  believe  that,  as  the  importance 
of  individual  liberty  becomes  more  and  more  im- 
pressed upon  our  minds,  the  following  quotation  from 
Mr.  Justice  Bradley's  dissent  will  more  and  more  fully 
echo  our  own  sentiments  and  the  sentiments  of  the 
great  tribunal  which  he  graced  so  long. 

He  says :  "  The  mischief  to  be  remedied  (by  the 
-amendments)  was  not  merely  slavery  and  its  incidents 
and  consequences,  but  that  spirit  of  insubordination 
to  the  national  government  which  had  troubled  the 
country  for  so  many  years  in  some  of  the  States,  and 


''JUDICIAL  RECORD."  21 

that  intolerance  of  free  speech  and  free  discussion 
which  often  rendered  life  and  property  insecure  and 
led  to  much  unequal  legislation.  The  amendment 
was  an  attempt  to  give  voice  to  that  strong  national 
yearning  for  that  time  and  that  condition  of  things 
in  which  American  citizenship  should  be  a  sure  guar- 
antee of  safety,  and  in  which  every  citizen  of  the 
United  States  might  stand  erect  in  every  portion  of 
its  soil  in  the  full  enjoyment  of  every  right  and  priv- 
ilege belonging  to  free  men,  without  fear  of  violence 
or  molestation." 

This  strong  statement  of  the  belief  that  the 
amendments  provided  for  the  complete  protection  of 
individual  liberty  will  do  more  to  preserve  the  name 
of  the  great  jurist  than  probably  any  other  single 
opinion  of  his  in  the  reports. 

THE  LEGAL  TENDER  CASES.— The  keynote  of  the 
late  Justice's  opinion  of  the  powers  of  the  Federal 
Government  is  found  in  his  expression  in  the  Legal 
Tender  Cases.*  "The  United  States  is  not  only  a 
government,  but  a  national  government."  As  such, 
he  argued,  it  has  all  those  powers  which  rightly  be- 
long and  are  necessary  to  the  preservation  of  the 
nation.  The  real  question  involved  in  the  Legal 
Tender  Cases  was  with  him,  as  with  Mr.  Justice  Field, 
who  dissented,  whether  a  national  republican  govern- 
ment, in  the  exercise  of  its  control  over  the  currency 
of  the  country  (with  complete  control  over  which,  Mr. 
Justice  Bradley  contended,  it  is,  as  a  national  govern- 
ment invested),  can  incidentally  take  the  property  of 
one  man  and  give  it  to  another.  This  is  what  making 
bills  "legal  tender"  means.  No  one  can  read  Mr 

*  8  Wall..  555. 


22  MISCELLANEOUS  WRITINGS. 

Justice  Field's  dissent  on  this  point  without  being  im- 
pressed with  its  force.     The  question  itself  is  one  of 
those  on  which  men  of  trained  intellects  will  always 
hold  different  views.     The  power  of  the  government 
to  protect  and   preserve  itself,    and  the  right  of  the 
individual  to  his  property,  are  two  fundamental  prin- 
ciples in  constitutional  law.     In  the  facts  of  the  Legal 
Tender  Cases,  they  apparently  came  in  direct  conflict. 
The  national  government,   from  its  nature   and  the 
duties  and  responsibilities  which  devolve  upon  it  as 
defender  of  the  people   from  domestic   and  external 
violence,  undoubtedly  ought  to  possess  greater  control 
over  individual  liberty  and  property  than  the  State 
governments.     At   the  same   time  it  is   equally   true 
that  there  are  principles  of  individual  liberty  which  a 
national  government    ought  not  to   be   allowed   to 
trample  under  foot.     No  one  would  pretend  for  an 
instant  that  the  property  of  all  men  over  six  feet  high 
could  be  confiscated  by  the  national  government  on 
the   pretence   of  saving  the   country.     On   the   other 
hand,  a  tax  on  all  creditors  of  twenty  per  cent,  on 
their  debts,  collected  when  payment  was  made,  would 
undoubtedly  be  constitutional.     The  facts  of  the  Legal 
Tender  Cases  stand  between  these  two  extremes.     We 
think  that  Mr.  Justice  Bradley  was  right.     It  is  cer- 
tain  that  the   majority  of  the   bar   and  of  laymen 
approve  of  the  decision.     The  value  of  his   opinion, 
however,    lies   not  in   the   particular   conclusions    to 
which  he  came  from  the  facts  before  the  Court,  but  in 
the  point  of  view  which  the  opinion  adopts  toward 
the  power  of  congress.     To  say  that  this  view  will 
remain  and  grow  in  favor  with  the  bench,  the  bar  and 
the  whole  country,  is  saying  nothing  more  than  that 
we  will  continue  to  be  one  people,  under  one  national 
government. 


"JUDICIAL  RECORD."  23 

CHICAGO,  ST.  PAUL,  ETC.,  R.  R.  Co.  v.  MINNESOTA.* 
—Mr.  Justice  Bradley  differed  with  the  majority  of  his 
brethren  in  his  last  years  of  service  on  the  bench  on  a 
subject  which  is  likely  to  be  one  of  great  importance 
during  the  next  decade.  As  in  the  Slaughter  House 
Cases,  the  question  arises  out  of  the  XIYth  Amend- 
ment. It  is  also  the  result  of  the  laws  of  some  of  the 
States  which  appoint  railroad  commissions,  vested 
with  power  to  regulate  the  rates  of  fare  charged  by 
common  carriers  on  passengers  and  merchandise  trans- 
ported from  place  to  place  in  the  State.  In  the  above 
case  the  majority  of  the  Court,  Mr.  Justice  Blatchford, 
writing  the  opinion,  held,  that,  while  a  grant  to  the 
directors  in  the  charter  of  a  railroad,  of  the  right  to 
regulate  the  rates  of  fare,  does  not  prevent  the  States 
from  declaring  subsequently,  through  a  general  law, 
that  all  rates  of  fare  should  be  reasonable,  yet,  never- 
theless, a  State  cannot  prescribe  unreasonable  rates. 
And  the  majority  further  decided  that  the  judiciary 
are  the  final  arbitrators  of  the  question,  what  are 
reasonable  rates  ?  If,  therefore,  the  legislature  directly 
fixed  unreasonable  rates,  or  the  commission  appointed 
by  the  legislature  fixed  rates  unreasonable  in  the  eyes 
of  the  Court,  the  act  was  in  contravention  of  the 
XIYth  Amendment,  in  that  it  deprived  the  railroad  of 
its  property  without  due  process  of  law. 

Mr.  Justice  Bradley,  in  his  dissent,  took  the  posi- 
tion, that  since  the  legislature  had  the  power  to  fix 
the  rates  to  be  charged  for  public  services,  such  as  the 
transportation  of  passengers  and  goods,  it  should  be 
the  final  tribunal  to  determine  whether  a  specific  rate 
is  reasonable.  And,  furthermore,  the  question  of  the 


24  MISCELLANEOUS   WRITINGS. 

proper  specific  rate  in  any  case  being  essentially  an 
"  administrative  "  question^  the  State  legislatures  could 
constitutionally  delegate  the  power  to  determine  the 
rate  of  fare  in  any  specific  instance  to  a  commission, 
or  even  to  the  courts.  In  such  a  case  the  courts 
would  act  as  a  commission  and  determine  an  admin- 
istrative or,  in  other  words,  an  executive  question. 
Thus  the  courts  became,  as  far  as  the  act  relating  to 
railway  fares  was  concerned,  the  executive.  Under 
the  acts  of  the  legislature  which  simply  provide  gen- 
eral rules  for  the  guidance  of  the  courts  in  prescribing 
the  rates  of  fare  in  any  instance,  the  judges  determine 
the  rate  as  would  a  railroad  commission,  or  the  gov- 
ernor of  a  State  under  similar  circumstances.  But  it 
was  for  the  legislature  to  say  who  should  determine 
in  a  specific  instance  the  rates  to  be  charged  by  one 
carrying  on  a  public  employment.  The  proper  rate 
to  charge  is  a  legislative  and  executive  but  not  a 
judicial  question. 

In  the  present  confused  state  of  our  ideas  concern- 
ing what  is  a  judicial,  what  is  a  legislative,  or  what 
is  an  administrative  or  executive  question,  no  one  can 
say,  with  full  confidence  that  his  opinion  can  be  sus- 
tained by  the  trend  of  authority,  whether  the  reason- 
ableness of  a  rate  of  fare,  charged  by  a  common  carrier, 
ultimately  will  be  considered  a  judicial  question,  as  the 
majority  of  the  Supreme  Court  consider  it,  or,  with 
Mr.  Justice  Bradley,  regarded  as  a  legislative  question. 
But  certainly  the  last  position  appeals  to  us  as  the 
more  consistent  of  the  two.  The  word  "  reasonable," 
applied  in  connection  with  the  power  of  the  legislature 
to  prescribe  the  charges  for  public  employments,  either 
means  something  or  nothing.  If  it  means  nothing, 


"JUDICIAL  RECORD."  25 

then  the  legislature  has  the  right,  as  Mr.  Justice  Brad- 
ley claimed,  to  prescribe  any  rate  of  fare  it  chooses. 
This  is  only  another  way  of  saying  that  the  rate 
established  by  the  legislature,  either  directly  or  through 
a  commission,  or  Court  sitting  as  a  commission,  is 
necessarily  reasonable,  not  simply  prima  facie  reason- 
able. The  act  of  Minnesota,  which  the  Court  declared 
unconstitutional,  attempted  to  do  this  very  thing. 
The  majority,  therefore,  took  the  position  that  when 
they  had  said  in  Munn  v.  Illinois,  that  the  legislatures 
of  the  States  had  power  to  fix  reasonable  rates  for 
public  employments,  the  word  reasonable  meant  some- 
thing. The  State  legislatures  alone  being  able  to  pre- 
scribe what  is  reasonable,  the  reasonableness  of  any 
rate  becomes  a  fit  subject  for  judicial  investigation. 

Now,  the  inevitable  consequences  of  this  position, 
while  they  are  not  palpable  absurdities,  are,  neverthe- 
less, to  say  the  least,  extraordinary,  in  the  extent  of 
the  power  which  they  place  in  the  hands  of  the  Courts, 
and  the  way  in  which  they  tie  the  hands  of  the  State 
legislatures  in  respect  to  subjects  over  which  it  has 
always  been  considered  they  had  absolute  control — 
L  e.,  the  subjects  under  the  police  power  of  the  State. 

For  instance,  it  may  fairly  be  argued  that  in  any 
specific  instance  there  is  more  than  one  rate  which 
may  be  said  to  be  reasonable,  but  no  one  can  deny  that 
there  are  possibilities  of  rates  being  unreasonably  high 
as  well  as  possibilities  of  rates  being  unreasonably  low. 
If,  then,  a  legislature  has  no  right  to  fix  anything  but 
a  reasonable  rate,  suppose  no  rate  is  fixed  by  positive 
act  of  the  legislature,  and  the  company,  under  per- 
mission of  the  legislature  to  "fix  rates,"  fixes  a  rate 
unreasonably  high  ?  The  courts,  in  an  action  by  a 


26  MISCELLANEOUS   WRITINGS 

shipper  who  had  paid  an  unreasonably  high  rate, 
would  have  either  to  allow,  him  to  recover,  and  in  so 
doing  determine  what  was  a  reasonable  rate  for  the 
service  of  the  common  carrier,  or  affirm  that  the 
legislature,  through  the  directors  of  the  company,  had 
prescribed  an  unreasonable  rate.  Whether  under  the 
Constitution  of  the  United  States  the  legislatures  of 
the  States  can  prescribe  rates  of  fare  that  are  unreason- 
able, may  be  a  question,  but  it  certainly  cannot  be  open 
to  doubt,  that  no  State  Court  would  imply  that  the 
State  legislature,  by  its  failure  to  specify  or  prescribe 
any  rates  of  fare,  had  impliedly  sanctioned  any  rates 
of  fare,  no  matter  how  unreasonable;  which  a  carrier 
company  may  choose  to  charge.  Under  the  view  of 
the  majority,  therefore,  State  Railroad  Commissions 
that  are  not  courts  are  utterly  useless.  Not  only  must 
their  conclusions  as  to  the  reasonableness  of  any  rate 
be  reversed  by  the  Judiciary,  but  the  Judiciary  possesses 
a  right,  without  a  commission,  to  declare,  at  the  suit 
of  any  individual,  that  the  fare  charged  by  a  railroad 
company  is  unreasonable,  and,  therefore,  contrary  to 
the  will  of  the  State  legislature,  which,  as  a  matter 
of  courtesy,  must  be  presumed  to  have  provided  that 
the  company  could  only  charge  reasonable  rates. 

It  may  be  stated  as  a  general  rule  that  the  power 
to  do  what  another  considers  reasonable  is  110  power 
at  all.  For  the  last  fifty  years  the  courts  have  been 
upholding  the  power  of  the  State  to  make  police  regu- 
lations. The  right  of  the  State  to  prescribe  \vhat  a 
man  shall  charge  when  he  is  carrying  on  a  public 
employment,  as  a  railroad  or  a  warehouse,  was  based 
on  this  police  power.  It  is  now  proposed  to  take 
away  the  power  by  limiting  the  discretion  of  the 


"JUDICIAL  RECORD."  27 

legislature  to  what  the  Courts  shall  think  reasonable. 
It  seems  to  us  that  the  -whole  theory  on  \\rhich  the 
right  of  the  State  to  regulate  public  charges  is  based 
is  thus  disregarded.  It  was  thought  to  be  based  on 
the  fact  that  when  a  man  takes  up  an  employment, 
whose  proper  conduct  is  of  paramount  interest  to  the 
community,  he  does  so  subject  to  the  right  of  the  pub- 
lic to  regulate  his  actions.  The  will  of  the  people  in 
this  as  in  other  respects  is  expressed  through  the  acts 
of  their  representatives  in  the  Legislature.  The  opinion 
that  the  reasonableness  of  the  act  of  the  legislature  is 
a  judicial  question,  substitutes  the  will  of  the  judges 
for  the  will  of  the  people.  Mr.  Justice  Bradley  clearly 
foresaw  this,  and  deeply  regretted  the  inevitable  con- 
flict between  the  Courts  and  the  legislature. 

THE  COMMERCE  CLAUSE.— Outside  the  interpreta- 
tion of  the  amendments,  the  most  important  work  of 
the  Court  during  the  late  Justice's  term  was  the  devel- 
opment of  the  law  relating  to  interstate  commerce. 
No  other  Justice,  except  Mr.  Justice  Miller,  has  played 
such  an  important  part  in  the  development  of  this,  per- 
haps the  most  complicated  branch  of  constitutional 
law,  and  the  one  on  whose  proper  application  rests 
the  future  industrial  prosperity  of  the  country.  Mr. 
Justice  Bradley  and  his  associates  found  the  law  rela- 
tive to  interstate  commerce  involved  in  doubt.  To- 
day, as  a  result  of  their  labors,  many  principles  which 
can  be  applied  to  the  majority  of  new  cases  as  they 
arise  have  been  firmly  established.  With  the  most 
important  and  far-reaching  of  these  the  name  of  Mr. 
Justice  Bradley,  together  with  that  of  Mr.  Justice 
Field,  will  always  be  indissolubly  connected.  The 
question  of  the  nature  of  the  power  of  Congress  over 


28  MISCELLANEOUS    WRITINGS. 

commerce  had  often  engrossed  the  attention  of  the 
Court.  Some  judges  thought  the  power  was  concur- 
rent in  the  States,  others  exclusive  in  Congress.  The 
members  of  the  Court  during  the  time  of  Chief  Justice 
Taney,  seemed  to  labor  between  two  difficulties.  If 
the  States  had  a  concurrent  power  over  commerce, 
there  appeared  to  be  no  limit  to  the  extent  of  the  pos- 
sible interference  of  State  legislatures  in  the  intercourse 
between  citizens  of  different  States.  The  main  purpose 
of  the  "  more  perfect  union,"  was  to  prevent  this  inter- 
ference. On  the  other  hand,  if  the  power  was  not 
exclusively  in  Congress,  were  not  the  State  pilot  laws 
unconstitutional  ?  Mr.  Justice  Curtis  apparently  solved 
this  difficulty  in  Cooley  v.  Port  Wardens,  when  he 
pointed  out  that  the  nature  of  a  Federal  power 
depended  upon  the  subjects  over  \vhich  it  was  exercised  ; 
and,  therefore,  as  commerce  embraced  a  multitude  of 
subjects,  it  was  evident  that  over  some,  as  pilots,  the 
concurrent  power  of  the  State  extended,  while  others, 
as  imports  in  the  hands  of  the  importer,  were  exclu- 
sively under  the  control  of  the  Federal  government. 
During  the  time  of  Justices  Miller,  Field  and  Bradley, 
a  complete  change  has  taken  place  in  the  attitude  of 
the  Court,  and  an  important  rule,  first  emphasized  by 
Chief  Justice  Marshall  in  Gibbons  v.  Ogden,  has  been 
firmly  established.  Chief  Justice  Marshall  had  said  : 
*  *  *  "All  experience  shows  that  the  same  measure 
or  measures,  scarcely  distinguishable  from  each  other, 
may  flow  from  distinct  powers,  but  this  does  not  prove 
that  the  powers  themselves  are  identical."*  This 
means  that  a  State,  in  the  exercise  of  her  reserved  pow- 
ers, can  pass  many  laws,  such  as  pilot  laws,  which  it 


•  9  Wh.,  204. 


"JUDICIAL  RECORD."  29 

would  be  competent  for  Congress  to  pass  in  the  exer- 
cise of  the  power  over  commerce.  The  fact  that  the 
power  may  be  exclusively  in  Congress,  does  not  prevent 
the  State  from  making  a  law  whose  purpose,  as  dis- 
closed by  its  terms,  is  fairly  intended  to  improve  the 
internal  commerce  of  the  State,  or  to  protect  the  health 
and  morals  of  the  people,  from  being  a  constitutional 
law,  though  Congress  might  have  passed  a  similar 
law  in  the  exercise  of  one  of  her  exclusive  powers.  As 
far  as  interstate  commerce  is  concerned,  the  adoption 
of  this  principle  ends  the  confusion  which  arose  from 
discussing  a  concurrent  power  of  the  State  over  a  sub- 
ject which,  as  interstate  and  foreign  commerce,  is  essen- 
tially national.  One  cannot  but  believe  that  its 
recognition  is  a  distinct  advance  in  our  constitutional 
law.  For  from  the  standpoint  of  political  science,  one 
of  the  purposes  of  that  law  is  to  separate  things  na- 
tional from  things  local.  In  the  complete  development 
of  constitutional  law,  therefore,  there  can  be  no  such 
thing  as  a  subject  which  is  at  once  partly  national 
and  partly  local.  Naturalization,  for  instance,  ought 
to  be  a  national  matter  or  a  local  or  State  matter. 
To  declare  that  it  is  both  would  be  to  invite  confusion. 
The  realization  that  interstate  commerce,  as  such,  is 
solely  a  national  matter,  but  that  nevertheless  there  is 
nothing  to  prevent  the  States,  in  the  exercise  of  their 
reserved  powers,  from  passing  laws  which  Congress 
might  pass  in  the  exercise  of  its  exclusive  power  over 
such  a  commerce,  which  is  mainly  due  to  Mr.  Justice 
Field  and  the  late  Justices  Miller  and  Bradley,  has 
therefore,  done  much  to  clarify  our  ideas  on  constitu- 
tional subjects. 

An    important   adjunct   to    the    above-mentioned 


30  MISCELLANEOUS   WRITINGS. 

theory,  in  regard  to  the  consequences  of  an  exclusive 
power  in  the  Federal  government,  is  the  doctrine  which 
was  developed  simultaneously  with  it,  and  known  as 
that  of  the  "  silence  of  Congress."  When  the  Court 
regarded  the  exclusive  power  of  Congress  over  com- 
merce as  not  preventing  the  States,  in  the  absence  of 
conflicting  congressional  legislation,  from  affecting  com- 
merce in  the  exercise  of  their  police  powers,  it  imme- 
diately followed  that  any  law  of  the  State,  no  matter 
how  much  it  obstructed  interstate  commerce,  such  as 
a  bridge  over  an  important  river,  was  entirely  within 
the  power  of  a  State  to  enact,  provided  its  main  object 
was  one  which  it  was  competent  for  a  State  to  under- 
take. Such  a  result  was  to  be  profoundly  deplored. 
Justices  Field  and  Bradley,  in  a  long  line  of  cases, 
commencing  with  Wei  ton  v.  State  of  Missouri,*  took 
the  old  distinction  between  things  over  which  Congress 
was  supposed  to  have  an  exclusive  control,  and  those 
over  which  the  States  were  supposed  to  have  a  con- 
current power,  and  formulated  and  applied  the  now 
famous  constitutional  doctrine,  that  the  silence  of  Con- 
gress respecting  regulations  of  subjects  in  their  nature 
national  must  be  taken  by  the  courts  as  an  indication 
of  its  will  that  commerce  in  this  respect  should  be  free 
from  State  regulations  ;  but  over  certain  other  subjects, 
such  as  pilots,  over  which  it  used  to  be  contended 
that  the  concurrent  power  of  the  States  extended,  then 
the  non-action  or  silence  of  Congress  is  no  indication 
of  its  will  that  commerce  in  this  respect  should  be  free 
from  State  regulations,  and,  therefore,  State  laws  \vhich 
aifect  these  subjects  do  not  conflict  with  the  will  of 
Congress.  Thus,  though  the  way  of  regarding  the 


91  U.  S.,  275. 


"JUDICIAL  RECORD."  31 

power  of  the  States  in  respect  to  commerce  was  modi- 
fied, hardly  a  case  had  to  be  overruled. 

The  practical  effect  of  this  interpretation  of  the  com- 
merce clause  of  the  Constitution  is  a  masterpiece  of 
judicial  legislation.  It  requires  that  the  consent  of  the 
Federal  authority  should  first  be  obtained  before  a 
particular  locality  essays  to  embark  on  legislation, 
which,  however  necessary  to  preserve  the  morals  of 
the  citizens,  profoundly  affects  the  commerce  of  the 
whole  country.  But  when  once  the  whole  nation 
decides  that  such  local  legislation  may,  in  some  in- 
stances, be  desirable,  the  particular  regulations  are 
enacted  by  the  States,  which  alone  are  familiar  with 
local  conditions. 

This  examination  of  the  opinions  of  the  late  Justice 
might  be  continued  indefinitely.  We  cannot  dignify  a 
sketch  which  has  simply  touched  the  outskirts  of  his 
work  with  the  name  review.  When  we  look  over  the 
long  line  of  decisions  with  which  his  name  is  connected, 
a  feeling  akin  to  awe  and  reverence  comes  over  us.  Of 
awe,  at  the  magnitude  of  the  work  ;  of  reverence,  at 
the  greatness  of  the  intellect  which  solved  such  a  vari- 
ety of  problems.  Surely  the  late  Justice  was  one  of 
those  men  of  whom  we,  as  Americans,  can  be  justly 
proud.  He  combined  in  his  own  person  and  character 
the  two  strong  points  of  the  Anglo-Saxon :  a  great 
and  wide  practical  knowledge  of  men  and  things,  com- 
bined with  the  power  of  concentration  and  subjective 
analysis.  At  his  death,  the  bench,  bar  and  country 
lost  one  who,  for  the  clearness  of  his  thought  and  for 
the  thoroughness  of  his  acquaintance  with  all  subjects 
connected  with  his  profession,  was  perhaps  without  a 
superior  in  the  history  of  our  judiciary. 


•"DISSENTING  OPINIONS" 

OK 

MR.    JUSTICE    BRADLEY. 


BY   THE  LATE   A.  Q.  KEA8BEY,    BSQ, 
OF  NEWARK,   N.  J. 


An  interesting  paper  was  read  at  the  recent  meeting 
of  the  American  Bar  Association,  by  Mr.  Hampton  L. 
Carson,  of  Philadelphia,  entitled,  "  Great  Dissenting 
Opinions."  It  may  be  found  in  the  Albany  Law  Jour- 
nal for  August  25,  1894.  It  was  a  happy  thought  to 
recall  in  chronological  order  the  important  dissenting 
opinions  of  the  justices  of  the  Supreme  Court  of  the 
United  States  upon  questions  of  constitutional  law. 
The  writer  justly  says  that  these  opinions,  viewed  in 
mass  for  the  last  hundred  years,  constitute  in  a  certain 
sense  the  best  exposition  of  the  views  of  two  contend- 
ing schools  of  constitutional  interpretation,  and  enable 
us  to  grasp  the  living  principles  underlying  the  struggle 
between  the  expanding  empire  of  national  federalism, 
and  the  shrinking  reservation  of  State  sovereignty.  He 
takes  up  in  their  order  the  great  cases,  the  names  of 
which  have  become  fixed  in  the  memory  of  all  students 
of  our  constitutional  history,  as  the  names  of  famous 
battle-fields  become  landmarks  in  the  progress  of  the 
world.  He  brings  before  us  in  vivid  array,  Chisholm's 
Executors  v.  Georgia ;  Marbury  v.  Madison  ;  Sturges 

*  New  Jersey  Law  Journal,  October,   1894. 


34  MISCELLANEOUS   WRITINGS. 

v.  Crowninshield ;  McCulloch  v.  Maryland  ;  Cohens 
v.  Virginia ;  Gibbons  v.  Ogden  ;  Dartmouth  College 
v.  Woodward ;  Osborne  v.  U.  S.  Bank ;  Brown  v. 
Maryland  ;  Craig  v.  Missouri  ;  Ogden  v.  Saunders ; 
Charles  River  Bridge  v.  Warren  Bridge  ;  Genesee  Chief 
v.  Fitz  Hugh  ;  the  License  cases  ;  the  Passenger  cases  ; 
Prigg  v.  Pennsylvania ;  the  Dred  Scott  case ;  the 
Legal  Tender  cases;  the  Slaughter  House  cases  and 
others. 

These  names  in  themselves  recall  to  the  mind  of 
every  student  of  our  constitutional  history  the  phases 
of  the  varied  contests  which  have  marked  the  develop- 
ment of  our  national  jurisprudence,  and  it  is  as  Mr. 
Carson  says,  "  of  infinite  value  to  gaze  on  the  most 
hotly-contested  battle-fields,  while  it  is  ennobling  to 
know  how  heroes  fought  in  defense  of  causes  which 
they  held  dear."  Indeed  some  of  these  contests  carried 
on  in  the  quiet  chamber  of  justice,  in  Washington,  with 
no  flare  of  trumpets  or  waving  of  banners,  will  be  in 
the  long  future  of  more  interest  and  importance  than 
any  waged  on  our  actual  battle-fields.  We  commend 
this  scholarly  paper  to  the  general  student  of  our  his- 
tory,as  well  as  to  the  bar,  as  one  of  fascinating  interest. 

But  the  special  object  of  this  note  upon  it,  is  to 
allude  to  the  part  taken  by  our  great  New  Jersey  Jus- 
tice of  the  Supreme  Court,  in  the  contests  that  occurred 
during  the  twenty  years  of  his  judicial  service.  In  the 
leading  constitutional  cases,  he  wrote  few  dissenting 
opinions.  Like  Marshall,  he  was  strong  and  masterful 
enough  generally  to  carry  the  Court  with  him.  Mr. 
Carson,  in  his  paper,  speaks  of  only  one  dissenting 
opinion  of  Marshall,  in  Ogden  v.  Saunders,  and  says 
that  this  was  the  only  great  dissenting  opinion  which 


"DISSENTING  OPINIONS."  35 

occurred  during  his  judicial  career.  And  in  the  course 
of  the  paper  only  one  dissenting  opinion  of  Mr.  Justice 
Bradley  is  alluded  to,  that  which  he  read  in  the 
slaughter  house  cases,  in  which,  with  Mr.  Justice  Field, 
he  urged,  in  energetic  terms,  that  the  fourteenth  and 
fifteenth  amendments  were  intended  for  whites  as  well 
as  blacks  ;  that  they  conferred  on  all  citizens  of  the 
United  States  the  fundamental  rights  of  person  and 
property  usually  regarded  as  secured  in  all  free  coun- 
tries. But  this  was  not  the  only  dissenting  opinion  of 
Judge  Bradley  in  matters  of  grave  constitutional  im- 
port. Indeed  the  very  last  opinion  read  by  him,  but 
five  weeks  before  his  death,  was  a  dissenting  one,  and 
related  to  a  branch  of  constitutional  law,  to  which  he 
had  devoted  his  best  powers  throughout  his  judicial 
career— that  of  the  scope  of  National  authority  in  the 
matter  of  interstate  commerce.  To  extend  and  secure 
this  authority-  by  judicial  interpretation  of  the  com- 
merce clause  of  the  Constitution  had  been  his  earnest 
effort  in  every  case  in  which  the  question  arose  in  any 
form.  In  a  long  line  of  decisions  he  had  expressed  his 
views  with  the  logical  power  and  persuasive  earnest- 
ness which  enabled  Marshall  to  accomplish  his  great 
work.  Only  three  years  before  his  death,  in  his  opinion 
in  the  Arthur  Kill  Bridge  case,  in  the  New  Jersey  Cir- 
cuit, he  had  stated  his  views  as  to  the  scope  of  the 
commerce  clause  in  their  most  advanced  form.  One 
hundred  years  before,  the  State  of  New  York  had 
granted  to  John  Fitch,  the  exclusive  right  to  navigate 
her  waters  with  vessels  "  moved  by  fire  or  steam," 
and  continued  it  to  Robert  Fulton  and  Robert  R.  Liv- 
ingston in  1803.  Their  assignee  obtained  an  injunction 
from  the  Chancellor  of  New  York  to  stop  a  Jerseyman 


36  MISCELLANEOUS    WRITINGS. 

from  running  steamboats  from  Elizabethtown  to  New 
York  City.  But  in  1824'  the  Supreme  Court  of  the 
United  States  held  the  State  law  invalid,  and  Chief  Jus- 
tice Marshall  laid  down  principles  which  have  been 
reasserted  in  various  forms  and  applied  with  increasing 
force  to  all  instrumentalities  of  interstate  intercourse 
in  every  phase  of  its  development.  In  the  Arthur  Kill 
Bridge  case  these  principles  had  been  rudely  assailed 
by  the  State  of  New  Jersey  in  its  turn,  as  New  York 
had  done  a  century  before.  Her  legislature  declared 
by  joint  resolution,  that  the  waters  of  the  Kill  and  the 
soil  under  them  were  hers  by  sovereign  right,  and  that 
if  the  Congress  should  authorize  a  bridge,  it  would  be 
a  usurpation,  and  the  sympathy  of  all  sister  States 
was  invoked  in  the  struggle  of  New  Jersey  for  State 
rights.  A  law  was  passed  also  expressly  forbidding 
any  person  or  corporation  to  bridge  any  river  dividing 
New  Jersey  from  other  States. 

A  law  of  Congress  authorizing  the  Baltimore  and 
New  York  Railroad  Company  to  bridge  the  sound  was 
passed,  notwithstanding  this  State  protest,  and  the 
company  proceeded  to  do  so.  The  Attorney  General 
of  New  Jersey  obtained  an  injunction  and  the  work 
was  stopped — as  the  New  York  Chancellor  stopped  Mr. 
Gibbons  from  running  his  steamboats,  the  Stoudinger 
and  Bellona,  from  Elizabethtown  to  New  York,  in 
1824.  The  case  was  removed  to  the  United  States 
Circuit  Court,  and  this  furnished  Mr.  Justice  Bradley 
an  opportunity  to  express  his  views  on  the  subject  of 
interstate  commerce,  and  he  did  it  with  a  vigor  not 
surpassed  by  that  of  Marshall  in  Gibbons  v.  Ogden. 
He  declared  that  "  the  power  of  Congress  is  supreme 
over  the  whole  subject,  unimpeded  by  State  laws  or 


"DISSENTING  OPINIONS."  37 

State  lines  ;  that  in  matters  of  foreign  and  interstate 
commerce  there  are  no  States ;  and  that  it  must  be 
received  as  a  postulate  of  the  Constitution,  that  the 
government  of  the  United  States  is  invested  with  full 
and  complete  power  to  execute  and  carry  out  its  pur- 
poses, whether  the  States  co-operate  and  concur  therein 
or  not."  As  to  the  claim  of  the  State  to  ownership 
of  the  waters  and  the  soil  under  them  he  said,  "  The 
power  to  regulate  commerce  is  the  basis  of  the  power 
to  regulate  navigation  and  navigable  waters  and 
streams  ;  and  these  are  so  completely  subject  to  the 
control  of  Congress,  as  subsidiary  to  commerce,  that 
it  has  become  usual  to  call  the  entire  navigable  waters 
of  the  country  the  navigable  waters  of  the  United 
States.  It  matters  little  whether  the  United  States 
has  or  has  not  the  theoretical  ownership  and  dominion 
in  the  waters,  or  the  land  under  them  ;  it  has  what  is 
more,  the  regulation  and  control  of  them  for  the  pur- 
poses of  commerce,  so  wide  and  extensive  is  the  opera- 
tion of  this  power,  that  no  State  can  place  any 
obstruction  in  or  upon  any  navigable  waters  against 
the  will  of  Congress,  and  Congress  may  summarily 
remove  such  obstructions  at  its  pleasure." 

This  case  was  taken  to  the  Supreme  Court,  but  the 
appeal  was  abandoned  by  the  State,  and  the  bridge 
was  built,  and  now  the  Hudson  River  is  to  be  bridged 
at  the  city  of  New  York  under  a  law  of  Congress, 
without  opposition.  Judge  Bradley  expressed  his 
regret  at  the  withdrawal  of  this  appeal,  for  he  was 
anxious  for  every  opportunity  to  vindicate  his  views 
on  interstate  commerce  and  embody  them  in  the  judg- 
ments of  the  Supreme  tribunal. 


oo 


38  MISCELLANEOUS   WRITINGS. 

Certain  cases  afterward  occurred,  in  which  he  felt 
that  the  Court  was  taking  retrograde  steps  on  this 
subject,  which  he  deemed  of  vital  importance. 

One  of  them  was  Pullman's  Palace  Car  Company 
v.  Commonwealth  of  Pennsylvania,  141  U.  S.  101, 
decided  May  11,  1891. 

In  this  case  the  majority  of  the  Court  held,  that 
"  there  is  nothing  in  the  Constitution  or  laws  of  the 
United  States  which  prevents  a  State  from  taxing  per- 
sonal property  within  its  jurisdiction,  employed  in 
interstate  or  foreign  commerce,"  and  that,  "  where 
the  cars  of  a  company  within  a  State  are  employed  in 
interstate  commerce,  their  being  so  employed  does  not 
exempt  them  from  being  taxed  by  the  State."  The 
opinion  of  the  Court  was  read  by  Mr.  Justice  Gray,  and 
Justices  Bradley,  Field  and  Harlan  dissented.  Mr. 
Justice  Bradley  read  the  dissenting  opinion,  in  which 
he  asserted  his  well  known  views  on  the  score  of  the 
commerce  clause  very  strongly,  saying  that  "  A  citizen 
of  the  United  States,  or  any  other  person,  in  the  per- 
formance of  any  duty,  or  in  the  exercise  of  any  privi- 
lege, under  the  Constitution  or  laws  of  the  United 
States,  is  absolutely  free  from  State  control  in  relation 
to  such  matters.  So  that  the  general  proposition, 
that  all  persons  and  personal  property  within  a  State 
are  subject  to  the  laws  of  the  State,  unless  materially 
modified,  cannot  be  true."  After  a  careful  review  of 
the  cases  he  dissented  emphatically  from  the  result 
reached  by  the  Court,  and  closed  by  saying  :  "  The 
State  can  no  more  tax  the  capital  stock  of  a  foreign 
corporation  than  it  can  tax  the  capital  of  a  foreign 
person.  Pennsylvania  cannot  tax  a  citizen  and  resi- 
dent of  New  York,  either  for  the  whole  or  any  portion 


"DISSENTING  OPINIONS."  39 

of  his  general  property  or  capital.  It  can  only  tax 
such  property  of  that  citizen  as  may  be  located  and 
have  a  situs  in  Pennsylvania.  And  it  is  exactly  the 
same  with  a  foreign  corporation.  Its  capital,  as  such, 
is  not  taxable.  To  hold  otherwise,  would  lead  to  the 
most  oppressive  and  unjust  proceedings.  It  would 
lead  to  a  course  of  spoliation  and  reprisals  that  would 
endanger  the  harmony  of  the  union."  The  same  dis- 
sent was  filed  in  the  case  of  Pullman's  Car  Co.  v. 
Hay  ward,  decided  on  the  same  day,  in  which  it  was 
held,  that,  "  the  cars  of  a  company,  let  to  railroad 
corporations,  and  employed  exclusively  in  interstate 
commerce,  may  be  taxed  in  a  State,  and  the  tax 
apportioned  among  the  counties  of  the  State  accord- 
ing to  mileage  of  the  railroads  in  each  county,  and 
levied  in  those  counties."  Judge  Bradley  regarded 
these  cases  as  indicating  a  divergence  from  the  line  of 
decision  which  he  had  long  striven  to  maintain. 

Another  case  was  the  one  already  alluded  to  in 
which  he  read  his  last  opinion,  dissenting  from  the 
views  of  the  majority.  It  was  the  case  of  State  of 
Maine  v.  Grand  Trunk  Railroad  Company  of  Canada, 
142  U.  S.,  decided  December  14,  1891. 

Justice  Field  read  the  opinion  of  the  Court,  holding 
that  a  State  can  levy  an  excise  tax  on  a  railroad  cor- 
poration for  the  privilege  of  exercising  its  franchise 
within  the  State  ;  that  the  character  of  such  a  tax  or 
its  validity  are  not  determined  by  the  modes  adopted 
in  fixing  its  amount  for  any  specific  period  of  its  pay- 
ment ;  and  that  reference  to  the  transportation  receipts 
of  a  railroad  company,  and  to  a  certain  percentage  of 
the  same  in  determining  the  amount  of  an  excise  tax 
on  the  company  is  not  in  effect  the  imposition  of  a  tax 


40  MISCELLANEOUS   WRITINGS. 

on  such  receipts,  nor  an  interference  with  interstate 
commerce,  although  the  railroad  lies  partly  within  and 
partly  without  the  State.  Justice  Bradley  regarded 
this  as  an  undue  limitation  of  the  power  of  Congress 
over  interstate  commerce,  and  read  an  adverse  opinion. 
It  may  not  take  rank  amongst  "  Great  Dissenting 
Opinions,"  but  it  displays  his  mental  characteristics  in 
a  striking  manner,  and  shows  the  vigor  and  earnest- 
ness which  he  always  brought  to  bear  in  dealing  with 
this  great  subject.  Three  of  his  associates  concurred 
with  him.  He  said:  "Justices  Harlan,  Lamar, 
Brown  and  myself,  dissent  from  the  judgment  of  the 
Court  in  this  case.  We  do  so  both  on  principle  and 
authority.  On  principle  because,  whilst  the  purpose 
of  the  law  professes  to  be  to  lay  a  tax  upon  the  foreign 
company  for  the  privilege  of  exercising  its  franchise  in 
the  State  of  Maine,  the  mode  of  doing  this  is  uncon- 
stitutional. The  mode  adopted  is  the  laying  of  a  tax 
on  the  gross  receipts  of  the  company,  and  these  receipts, 
of  course,  include  receipts  for  interstate  and  interna- 
tional transportation  between  other  States  and  Maine, 
and  between  Canada  and  the  United  States.  Now,  if 
after  the  previous  legislation,  which  has  been  adopted 
with  regard  to  admitting  the  company  to  carry  on 
business  within  the  State,  the  Legislature  has  still  the 
right  to  tax  it  for  the  exercise  of  its  franchises,  it  should 
do  so  in  a  constitutional  manner,  and  not  (as  it  has 
done)  by  a  tax  on  the  receipts  derived  from  interstate 
and  international  transportation.  The  power  to 
regulate  commerce  among  the  several  States  (except  as 
to  matters  merely  local)  is  just  as  exclusive  a  power 
in  Congress  as  is  the  power  to  regulate  commerce  with 
foreign  nations  and  with  the  Indian  tribes.  It  is  given 


"DISSENTING  OPINIONS."  41 

in  the  same  clause,  and  couched  in  the  same  phrase- 
ology ;  but  if  it  may  be  exercised  by  the  States,  it 
might  as  well  be  expunged  from  the  Constitution.  We 
think  it  a  power  not  only  granted  to  be  exercised,  but 
that  it  is  of  first  importance,  being  one  of  the  principal 
moving  causes  of  the  adoption  of  the  Constitution." 

He  then  referred  to  disputes  between  States  as  to 
interstate  facilities  of  intercourse,  and  the  intolerable 
discriminations  made,  and  said  :  "  Passing  this  by, 
the  decisions  of  this  Court  for  a  number  of  years  past 
have  settled  the  principle  that  taxation  (which  is  a 
mode  of  regulation)  of  interstate  commerce,  or  of  the 
revenue  derived  therefrom  (which  is  the  same  thing), 
is  contrary  to  the  Constitution." 

He  cited,  Pickard  v.  Pullman  Car  Co.,  117  U.  S. 
34,— annual  tax  on  sleeping  cars  going  through  the 
State;  Leloup  v.  Mobile,  127  U.  S.  640,— telegraph 
receipts  ;  Norfolk  Co.  v.  Pennsylvania,  136  U.  S.,  114, 
— keeping  a  through  railroad  office  in  a  State ; 
Crutcher  v.  Kentucky,  141  U.  S.  47,— taxation  of  ex- 
press companies  for  doing  business  between  the  States. 

And  added  :  "A  great  many  other  cases  might  be 
referred  to,  showing  that  in  the  decisions  and  opinions 
of  this  Court  this  kind  of  taxation  is  unconstitutional 
and  void.  We  think  the  present  decision  is  a  depart- 
ure from  the  line  of  these  decisions.  The  tax,  it  is 
true,  is  called  a  tax  on  a  franchise.  It  is  so  called,  but 
what  is  it  in  fact  ?  It  is  a  tax  on  the  receipts  of  the 
company,  derived  from  international  transportation." 

After  speaking  of  the  length  to  which  State  Courts 
and  the  Supreme  Court  have  gone  in  sustaining  various 
forms  of  taxes  on  corporations,  he  said  :  "  I  do  not 
know  that  jealousy  of  corporate  institutions  could  be 


42  MISCELLANEOUS    WRITINGS. 

carried  much  further.  The  Supreme  Court  has  held 
that  taxation  of  Western  .Union  stock  in  Massachu- 
setts, graduated  by  the  mileage  of  lines  in  that  State 
compared  with  the  lines  in  all  other  States,  was  only 
a  tax  upon  its  property,  yet  it  was  in  terms  a  tax 
upon  its  capital  stock,  and  might  as  well  have  been  a 
tax  upon  its  gross  receipts.  The  present  decision 
holds  that  taxation  may  be  imposed  upon  the  gross 
receipts  of  the  company  for  the  exercise  of  the  fran- 
chise within  the  State,  if  graduated  according  to  the 
number  of  miles  the  road  runs  in  the  State."  And  he 
closed  by  saying  :  "  Then  it  comes  to  this.  A  State 
may  tax  a  railroad  company  upon  its  gross  receipts, 
in  proportion  to  the  number  of  miles  run  within  the 
State,  as  a  tax  on  its  property  and  may  also  lay  a 
tax  upon  these  same  gross  receipts  in  proportion  to  the 
same  number  of  miles  for  the  privilege  of  exercising  its 
franchise  in  the  State.  I  do  not  know  what  else  it 
may  not  tax  the  gross  receipts  for.  If  the  interstate 
commerce  of  the  country  is  not,  or  will  not  be,  handi- 
capped by  this  course  of  decision,  I  do  not  understand 
the  ordinary  principles  which  govern  human  conduct." 
Mr.  Justice  Bradley  died  on  the  22d  day  of  Janu- 
ary, 1892,  only  a  few  weeks  after  reading  this  opinion. 
The  great  Chief  Justice  lived  eight  years  after  deliver- 
ing his  dissenting  opinion  in  Ogden  v.  Saunders.  Mr. 
Carson  says  that  this  opinion  by  Marshall  has  been 
termed  his  master  effort ;  that  "  prior  to  that  time  the 
steadiness  of  the  movement  of  the  ship  of  state  under 
the  hand  of  her  great  helmsman,  had  been  without 
wavering  or  shadow  of  turning ;  "  and  that  "  with 
the  passing  of  Marshall,  the  school  of  strict  construc- 
tionists  marched  to  power,  and  the  current  of  decision 


"DISSENTING  OPINIONS."  43 

was  turned  into  channels,  running  in  anew  direction." 
It  does  not  seem  likely,  in  the  present  situation  of 
the  country  in  respect  to  interstate  commerce,  that  the 
current  of  decision  on  the  subject  will  run  in  any  new 
direction,  or  meet  with  serious  obstacles  with  the 
passing  of  Bradley.  And  yet,  within  two  weeks  of  his 
death,  he  expressed  to  the  writer  of  this  note  his  fear 
that  such  might  be  the  case,  and  alluding  to  the  judg- 
ment from  which  he  had  so  lately  dissented,  he  said 
with  great  earnestness,  and  evidently  with  some  fore- 
boding, that  he  hoped  to  live  and  retain  his  faculties 
for  four  years  more,  so  that  he  might  finish  the  work 
of  placing  the  power  of  the  national  government  over 
interstate  commerce,  in  all  its  forms,  on  an  impregna- 
ble basis. 

SEPTEMBER  24,  1894. 


THE  LEGAL  TENDER 'CASES  IN  1870. 


The  recent  death  of  Justice  Stephen  J.  Field  of  the 
Supreme  Court  of  the  United  States  releases  me  from 
a  sacred  obligation,  imposed  by  my  father,  the  late 
Justice  Joseph  P.  Bradley,  when  on  his  deathbed  and 
enables  me  to  publish  to  the  world  the  true  and  here- 
tofore unknown  history  of  the  controversy  in  the  secret 
conferences  of  the  Supreme  Court,  which  led  up  to  and 
resulted  in  the  famous  Legal  Tender  decision  of  that 
Court,— the  reversal  of  the  decision  of  the  U.  S.  Supreme 
Court  in  Hepburn  v.  Griswold,  and  to  vindicate  the 
memory  and  reputation  of  my  father,  by  refuting  the 
slanderous  charge  that  Judge  Strong  and  Judge  Brad- 
ley were  appointed  to  the  bench  with  the  distinct 
understanding  that  they  would  vote  to  reverse  the 
first  decision  of  the  Court  on  that  question— the  con- 
stitutionality of  the  Legal  Tender  Act. 

The  obligation  above  referred  to  was  that  I  should 
not  permit  the  documents  herewith  printed  to  become 
public,  "  as  long  as  any  Justice  who  was  on  the  bench 
at  that  time  was  still  living,"  and  being  given  me  by 
my  father  at  such  a  solemn  moment  and  reinforced  by 
the  personally  expressed  wish  of  Justice  Strong,  I  have 
religiously  conformed  to  it,  but  not  without  great 
effort,  in  the  face  of  repeated  statements  published  by 
distinguished  writers,  in  which  they  have  accepted  a 
mere  political  rumor  of  the  day,  as  a  fact  and  have 
referred  to  the  incident  as  the  "  packing  "  of  the  Court. 


46  MISCELLANEOUS   WRITINGS. 

Paul  L.  Ford,  in  the  "  Introduction  "  to  his  edition 
of  the  "  Federalist  "  so  refers  to  it,  and  J.  W.  Shuckers 
in  his  elaborate  "  Life  and  Public  Services  of  Salmon 
Portland  Chase "  (Chief  Justice  Chase),  devotes  a 
whole  chapter  to  the  subject,  pointedly  and  suggest- 
ively intimating  that  it  was  a  prearranged  scheme,  if 
not  a  corrupt  bargain  between  the  then  Executive, 
Gen.  Grant,  and  the  two  appointees,  Strong  and 
Bradley. 

Ex-Secretary  of  the  Treasury,  Charles  S.  Fairchild, 
in  a  public  address  at  Boston  a  few  years  ago,  repeated 
the  charge,  and  this  at  last,  induced  Senator  George 
F.  Hoar,  of  Massachusetts,  to  publish  a  refutation  of 
it,  based  on  historical  facts  and  dates,  but  more  par- 
ticularly in  defense  of  his  distinguished  brother,  Hon. 
E.  R.  Hoar,  at  the  time  Attorney  General,  and  who  had 
warmly  supported  and  urged  the  appointment  of 
Judges  Strong  and  Bradley.  But  the  real  history  of 
the  action  of  the  Court  itself  is  contained  and  only 
contained  in  the  "Statement,"  now  given  to  the 
public. 

The  original  paper,  prepared  by  Mr.  Justice  Miller, 
at  the  request  of  the  majority  of  the  Court,  and  signed 
by  them  (now  in  my  possession),  was  kept  by  him 
until  his  death,  when  Mr.  Justice  Bradley  obtained  it 
and  preserved  it  till  the  day  before  he  died,  at  which 
time  he  consigned  it  to  my  keeping  with  the  injunction 
before  mentioned.  This  was  done  with  the  knowledge 
and  consent  of  Mr.  Justice  Strong,  the  surviving  signer 
of  the  paper. 

It  is  now  given  to  the  public,  not  only  as  a  vindi- 
cation of  these  two  great  and  honorable  judges,  but 
in  the  hope  that  it  will  definitely  and  for  all  time 


THE   LEGAL  TENDER   CASES.  47 

settle  this  often  misrepresented  controversy  and 
silence  the  tongues  and  pens  of  those  who  have  lightly 
tossed  about  the  reputations  of  two  men,  whose  names 
in  legal  history  will  long  remain  as  bright  stars  in 
American  jurisprudence. 

The  facts  of  the  case  leading  up  to  the  contro- 
versy cannot  be  better  stated  than  by  quoting 
from  Senator  Hoar's  letter  to  the  Worcester  Spy  of 
December  7,  1896  : 

"  On  the  7th  day  of  February,  1870,  the  Supreme 
Court  of  the  United  States  met  at  12  o'clock.  The 
Senate  met  at  the  same  hour.  After  the  disposition  of 
some  other  business,  Chief  Justice  Chase  announced 
the  decision  of  the  Court  in  Hepburn  v.  Griswold. 
The  Court  held,  in  substance,  that  it  was  not  within 
the  constitutional  power  of  Congress  to  make  the 
United  States  Treasury  notes  legal  tender  for  debts, 
past  or  future.  The  Chief  Justice  in  his  opinion  said, 
in  substance,  that  this  power  was  not  expressly 
granted  to  Congress  by  the  Constitution,  and  was 
not  implied  as  being  necessary  to  the  execution  of 
other  expressly  granted  powers,  including  the  power 
to  declare  and  carry  on  war.  The  Judge  who  gave 
this  decision  was  himself  the  author  of  the  law  which 
he  declared  unconstitutional,  and  had  recommended  its 
passage,  and  had  procured  the  votes  of  reluctant  Sen- 
ators and  Representatives  by  personal  interviews  in 
which  he  had  urged  the  passage  of  the  measure  on  the 
ground  that  it  was  impossible  to  carry  on  the  war 
without  it,  and  that  the  government  could  neither  pay 
its  soldiers  nor  fulfil  its  contracts  for  the  supplies  and 
materials  of  war,  if  it  were  restricted  to  gold  and  silver 
alone.  Among  the  persons  with  whom  Mr.  Secretary 


4-8  MISCELLANEOUS    WRITINGS. 

Chase  had  these  personal  interviews  is  my  late  col- 
league, Mr.  Dawes,  then  a  leader  in  the  House  of  Rep- 
resentatives, and  several  other  living  persons  whom  I 
might  name,  as  well  as  a  good  many  who  are  deceased. 
I  mention  this  not  for  the  sake  of  implying  any  censure 
upon  that  great  statesman  and  patriot,  Chief  Justice 
Chase,  for  declaring  in  his  place  upon  the  bench  the 
law  as  it  then  seemed  to  him,  after  the  exigencies  of  the 
war  had  passed.  Indeed,  he  deserves  the  greater 
honor,  if,  in  interpreting  the  Constitution  in  his  place 
upon  the  bench,  he  disregarded  the  consideration  that 
his  own  reputation  might  be  affected  by  the  charge 
of  inconsistency  or  by  the  condemnation  which  his 
decision  would  imply  of  his  own  previous  conduct.  I 
only  mention  the  fact  to  show  that  it  was  very  un- 
likely that  anybody  should  have  expected  beforehand 
that  he  alone  among  the  leading  Republican  statesmen 
of  the  war  period,  should  come  to  such  a  conclusion. 
This  decision  was  announced,  as  I  have  stated,  on 
Monday,  February  7,  1870.  I  suppose  that  opinions 
were  read  in  other  cases,  that  motions  were  heard,  as 
was  then  usual  on  Monday  morning,  and  that  prob- 
ably this  opinion  was  not  read  before  two  or  three 
o'clock.  Indeed,  the  reading  of  the  Chief  Justice's  opin- 
ion, and  those  of  the  minority,  must  have  taken  an 
hour  or  two.  On  the  same  day,  February  7,  1870, 
the  nominations  of  Justices  Strong  and  Bradley  were 
sent  to  the  Senate.  The  fact  that  they  were  sent  there 
was  announced  in  the  Washington  Evening"  Star  of 
February  7,  and  in  the  Boston  and  New  York  even- 
ing papers  that  day.  I  have  now  in  my  hand  copies 
of  the  nominations  which  I  have  obtained  from  the 
files  of  the  Senate.  They  read  as  follows  : 


THE    LEGAL   TENDER    CASES.  49 

"  To  the  Senate  of  the  United  States : 

"  I  nominate  Joseph  P.  Bradley,  of  New  Jersey,  to  be  Associate 
Justice  of  the  Supreme  Court  of  the  United  States. 

"  U.  S.  GRANT. 

"Executive  Mansion,  February  7,  1870." 

This  is  a  precise  copy  of  the  nomination  of  the  Hon. 
William  Strong,  except  the  name  and  State.  The 
Senate  journal  does  not  show  the  receipt  of  any  par- 
ticular nomination  until  the  Senate  goes  into  executive 
session,  which  may  not  be  for  some  days.  But  the 
nominations  are  made  public  at  once,  and  these  were 
made  public  all  over  the  country  on  the  afternoon  of 
February  7.  I  have  also  in  my  hand  a  copy  of  what 
was  printed  in  the  Washington  Evening-  Star  of  Feb- 
7.  At  the  head  of  the  first  column,  first  page,  under 
the  heading,  "  Nominations,"  is  the  announcement  that 
the  President  sent  to  the  Senate  that  afternoon  the 
nomination  of  Joseph  P.  Bradley  to  be  Associate  Jus- 
tice of  the  Supreme  Court  of  the  United  States,  vice 
E.  R.  Hoar,  rejected  ;  and  William  Strong  to  be  Asso- 
ciate Justice  of  the  Supreme  Court  of  the  United  States, 
vice  Edwin  M.  Stanton,  deceased. 

In  the  New  York  Tribune,  of  Tuesday,  February  8, 
is  the  Washington  letter  of  February  7  :  "  The  Pres- 
ident sent  to  the  Senate  to-day  the  names  of  Bradley 
and  Strong."  In  the  Boston  Evening-  Transcript  of 
February  7,  is  the  statement:  "The  President  has 
just  nominated  to  the  Senate,  Judge  Strong  of  Pennsyl- 
vania and  Joseph  P.  Bradley  of  New  Jersey  as  Asso- 
ciate Justices  of  the  Supreme  Court."  But,  more  than 
all,  the  Boston  Herald  published  on  the  morning  of 
February  8,  has,  likewise,  an  announcement  of  these 
nominations  made  the  day  before.  The  evening  edition 


50  MISCELLANEOUS    WRITINGS. 

of  the  Herald  for  February  7,  is  not  in  our  library. 
I  presume  you  will  find  the  same  thing  there,  though 
that  is  unimportant. 

The  Senate  journal,  as  I  have  said,  does  not  show 
the  receipt  of  any  particular  Executive  nomination 
until  it  is  opened  and  laid  before  the  body  in  Executive 
session,  which  may  not  take  place  for  days  or  weeks, 
although  ordinarily  there  is  one  every  few  days.  But 
the  Congressional  Globe  of  that  morning  shows  that 
the  Senate  merely  transacted  its  routine  morning  busi- 
ness, and  then  took  up  resolutions  in  honor  of  a  deceased 
member,  and  adjourned.  It  further  shows  that  during 
the  routine  morning  business,  and  before  the  introduc- 
tion of  bills  and  resolutions,  the  President's  secretary 
came  in  with  sundry  legislative  messages.  It  is  the 
only  time  he  came  in  that  day.  So,  undoubtedly,  the 
Executive  message  nominating  the  Judges  was  deliv- 
ered at  the  same  time  with  the  legislative  messages, 
and  was  upon  the  table  of  the  Senate  a  few  minutes 
after  12  o'clock. 

I  have  dwelt  upon  these  details  to  show  the  absolute 
accuracy  of  my  statement  and  that  of  my  brother, 
which  I  shall  quote  hereafter,  that  these  nominations 
were  made  before  the  decision.  But  the  question 
whether  the  Chief  Justice  announced  his  opinion  or  the 
nominations  got  to  the  Senate  first  by  a  few  minutes 
is  of  the  most  trifling  character,  because  the  President's 
signature  to  the  nominations  must  have  been  made 
before  the  session  of  the  Senate  that  morning,  and  the 
Cabinet  meeting  at  which  they  were  discussed  was  held 
Tuesday  of  the  previous  week,  and,  as  will  appear  very 
soon,  the  nomination  of  Judge  Strong,  at  least,  had 
been  discussed  and  agreed  upon  long  before. 


THE   LEGAL   TENDER    CASES.  51 

The  decision  of  the  Supreme  Court  in  Hepburn  v. 
Griswold  was  made  and  entered  when  the  Judges  had 
finished  reading  their  opinions  on  Monday,  February 
7th,  1870,  after  the  nominations  of  Justice  Strong  and 
Bradley  had  been  laid  upon  the  table  of  the  Senate. 
It  was  some  hours  after  they  had  been  signed  by  the 
President.  It  was  some  days  after  they  had  been 
agreed  on  in  Cabinet  meeting.  It  was  weeks  after 
the  probable  appointment  of  Judge  Strong,  as  I  shall 
show  presently,  had  been  announced  in  the  newspapers. 
That  was  the  first  and  only  decision  of  the  Supreme 
Court  in  Hepburn  v.  Griswold.  I  shall  speak  presently 
of  what  took  place  November  27,  1869.  What  I  am 
speaking  of  now  is  the  decision  of  the  Supreme  Court. 

The  practice  of  the  Supreme  Court  of  the  United 
States  is,  I  suppose,  well  understood  in  Massachusetts. 
It  has  lately  been  described  by  Mr.  Justice  Harlan  in  a 
public  address  in  Cincinnati. 

I  have  taken  pains  also  to  get  from  a  very  high 
authority,  indeed,  a  statement  to  the  same  effect.  The 
course  is  precisely  the  same  as  that  pursued  by  the 
Supreme  Court  of  Massachusetts,  except  that  while  the 
decisions  of  the  Supreme  Court  of  the  United  States  are 
announced,  according  to  the  old  practice,  orally  from 
the  bench,  the  decisions  of  our  Court  are  now  made  by 
a  rescript  filed  in  the  clerk's  office,  and  accompanied 
by  a  brief  written  statement  of  the  Court's  reasons. 
The  course  of  proceeding  in  the  Supreme  Court  of  the 
United  States  is  this  :  After  the  hearing  of  arguments 
the  Judges  meet  in  consultation.  Each  of  the  Judges 
states, his  opinion  as  fully  as  he  may  desire.  After 
every  Judge  has  been  heard,  and  the  matter  has  been 
discussed  as  far  as  any  member  of  the  Court  thinks  fit, 


52  MISCELLANEOUS    WRITINGS. 

the  Judges  vote  upon  the  case.  The  Chief  Justice  then 
directs  what  Judge  shall «  deliver  the  opinion  of  the 
Court.  If  any  Judge  dissent,  he  is  at  liberty  to  pre- 
pare a  minority  opinion  giving  his  reasons  and  the 
reasons  of  the  other  Judges  who  may  agree  with  him. 
No  record  is  made  of  this  proceeding,  and  it  is  kept 
absolutely  secret  within  the  breasts  of  the  Judges 
until  the  public  announcement  of  the  opinion  in  the 
way  I  have  stated.  At  some  future  meeting  of  the 
Judges,  when  the  opinion  of  the  Court  has  been  pre- 
pared, it  is  read  over  to  the  Judges.  It  is  discussed, 
changed  or  modified  in  consequence  of  any  suggestion 
that  may  be  made.  In  very  recent  years  it  has  been 
the  custom  of  the  Judge  preparing  the  opinion  to  send 
copies  to  his  brethren.  It  sometimes  happens  that  an 
investigation  by  the  Judge  who  has  the  responsibility 
of  preparing  the  opinion  changes  his  mind  and  sug- 
gests to  him  some  new  point  of  view,  which  he  reports 
to  his  fellows,  and  which  changes  their  minds  also.  I 
have  had  this  happen  twice  in  my  own  practice  in 
Massachusetts.  One  case  was  Taft  v.  Uxbridge,  where 
the  Court  first  came  to  a  conclusion  in  my  favor,  which 
was  afterward  reversed  ;  and  one  was  the  case  of  Wol- 
cott  v.  Winchester,  where  the  Court  first  came  to  a 
conclusion  against  me,  but  afterward  decided  in  my 
favor.  But  no  record  whatever  is  made  of  anything  ex- 
cept the  mere  memoranda  of  the  Judges  to  aid  their  own 
memory  until  the  public  announcement.  Now  to  call 
this  proceeding  a  decision  of  the  Court  is,  in  my  opinion, 
a  misuse  of  language.  It  is  in  the  highest  degree  secret 
and  confidential.  Any  Judge  who  should  betray  the 
confidence  of  the  Court  in  this  matter  would  be  abso- 
lutely disgraced,  would  forfeit  the  respect  of  his  fel- 


THE    LEGAL   TENDER    CASES.  53 

lows  ;  and  when  we  consider  the  effect  upon  properties 
and  business  affairs  of  many  of  these  decisions  of  the 
Supreme  Court  of  the  United  States,  I  suppose  it  is  not 
too  much  to  say  that  he  would  deserve  impeachment. 
I  inquired  of  two  Justices  of  the  Supreme  Court  of 
Massachusetts,  both  of  whom  had  been  reporters, 
whether  they  had  ever  known  of  this  secret  getting 
out  from  the  Supreme  Court  of  Massachusetts  since 
the  beginning  of  the  Government ;  and  they  both  re- 
plied that  they  had  never  known  or  heard  of  such  a 
case.  In  the  case  of  the  Supreme  Court  of  the  United 
States  I  have  never  known  or  heard  of  such  a  case, 
with  one  or  two  exceptions,  although  I  have  been  tol- 
erably familiar  with  that  Court  and  pretty  intimately 
acquainted  with  every  member  of  it  for  nearly  twenty- 
eight  years.  There  was  a  case  some  time  ago  where 
a  decision  which  considerably  affected  the  price  of 
stocks  in  some  way  leaked  out.  Whether  it  came 
from  some  imprudent  remark  of  one  of  the  Judges,  or 
from  some  page  or  attendant  about  the  Court  room 
who  came  across  some  paper  which  had  been  care- 
lessly left  exposed,  nobody  knows.  But  it  excited 
great  feeling  on  the  part  of  the  members  of  the  Bench. 
Before  the  Dred  Scott  decision  President  Buchanan 
expressed  in  his  message  the  hope  that  the  question  of 
the  power  of  Congress  over  slavery  might  be  removed 
from  political  discussion  by  the  determination  of  the 
Supreme  Court.  It  was  conjectured,  but  never  proved, 
and  I  think  never  believed  by  the  large  majority  of  the 
profession  of  the  country,  that  he  might  have  had  some 
understanding  in  the  matter  with  Chief  Justice  Taney. 
I  do  not  believe  it  myself.  The  knowledge  that  the 
question  was  before  the  Court  and  the  general  opinions 


54  MISCELLANEOUS   WRITINGS. 

upon  public  questions  of  its  members  were  quite  suffi 
cient  for  President  Buchanan's  hope,  without  attrib. 
uting  anything  wrong  to  any  member  of  the  Bench. 

I  ought  frankly  to  concede  that  to  this  ascertain- 
ment in  conference  of  the  opinions  of  the  members  of 
the  Court,  the  term  "decision"  is  not  infrequently 
applied,  although  there  is  nothing  final  in  its  character. 
But  the  word  to  be  used  is  of  no  consequence  if  only 
the  substance  of  the  transaction  be  clearly  understood. 
There  is  no  finality  about  it.  It  is  merely  what  the 
Judges  call  a  "  semble."  The  Judges  hold  their  minds 
open  to  reconsider,  modify,  or  reverse  their  opinions 
if  new  light  be  shed  upon  the  case  by  the  researches  of 
the  Judge  who  prepares  the  opinion,  or  by  further 
reflection  or  further  discussion  when  the  opinion  is  read 
in  full.  And  they  keep  these  opinions  an  absolute 
secret. 

A  second  meeting  of  the  Judges  was  held  in  regard 
to  Hepburn  v.  Griswold  on  the  29th  day  of  January, 
1870.  The  opinion  in  that  case  was  not  read  and 
agreed  to  in  conference  until  that  day.  (See  the 
opinion  of  Chief  Justice  Chase  in  the  Legal  Tender 
Cases,  12  Wallace,  572.) 

The  dates  with  which  we  have  to  deal  with  are 
these: 

The  opinion  of  the  Judges  ascertained  in  conference 
27th  November,  1869. 

The  opinion  read  and  agreed  to  in  conference 
January  29,  1870. 

The  opinion  of  the  Court  announced,  and  the 
decision  entered  upon  the  docket,  February  7,  1870. 

The  statute  increasing  the  number  of  Judges  passed 
April,  1869,  to  take  effect  December,  1869. 


THE   LEGAL   TENDER    CASES.  55 

The  nominations  of  Judges  Strong  and  Bradley 
sent  to  the  Senate  February  7,  1870. 

Stanton  nominated,  December  20,  1869. 

Stan  ton  died  December  24,  1869. 

Judge  Grier's  resignation  to  take  effect  February  1, 
1870. 

Judge  Hoar  nominated  December  15,  1869. 

Judge  Hoar  rejected  February  3,  1870. 

It  appears  from  the  above  statement  that  when 
the  decision  was  entered  and  the  opinion  was  publicly 
announced,  there  were  but  four  Judges  upon  the  Bench 
who  agreed  to  that  decision,  out  of  a  Court,  which 
when  full,  consisted  of  nine.  This  consideration  has 
not  the  slightest  effect  upon  the  validity  of  the  decision. 
Whether  it  should  have  any  weight  as  to  the  propriety 
of  a  rehearing,  is  a  fair  question. 

I  have  no  doubt  the  Court  discussed,  in  consultation, 
the  case  of  Hepburn  v.  Griswold,  November  27,  1869, 
and  the  opinion  of  the  majority  was  then  ascertained. 
We  will  consider  presently  the  question  whether  that 
opinion  leaked  out.  But  first  let  us  take  the  history 
of  these  appointments.  When  President  Johnson  came 
into  power  the  Supreme  Court  consisted  often  members. 
By  the  statute  of  July  23,  1866,  it  was  enacted  that 
there  should  be  no  new  appointments,  until  by  death  or 
resignations  the  Court  should  be  reduced  to  seven 
members,  and  seven  thereafter  should  be  the  number 
of  Justices.  This  statute  has  been  generally  supposed 
to  have  been  passed  to  take  from  President  Johnson 
the  power  of  appointing  any  new  Judges  in  place  of 
some  of  the  members  of  the  Court  who  were  growing 
old,  and  whose  places,  in  the  course  of  nature,  would 
shortly  be  vacant.  When  President  Grant  came  in, 


56  MISCELLANEOUS   WRITINGS. 

the  number  of  the  Court  had  become  reduced  to  eight 
members.  The  docket  had.,become  crowded  with  busi- 
ness, and  suitors  had  to  wait  years  for  a  hearing. 
Accordingly,  at  the  short  spring  session  in  1869,  an 
act  was  passed  increasing  the  number  of  Justices  to 
nine,  and  authorizing  the  President  to  nominate  an 
additional  Judge  to  the  session  of  the  Senate,  which 
would  take  place  the  following  December.  The  Presi- 
dent nominated  to  that  vacancy  Mr.  Hoar,  then 
Attorney  General.  This  nomination  was  made  Decem- 
ber 14,  1869.  I  have  never  heard  that  anybody 
supposed  or  intimated  that  that  nomination  was  made 
for  the  purpose  of  packing  the  Court,  although,  as  you 
will  observe,  it  was  made  three  weeks  after  the  first 
conference  of  the  Supreme  Court  in  regard  to  Hepburn 
v.  Griswold,  and  the  conclusion  then  arrived  at,  by 
whatever  name  you  choose  to  call  it.  There  were  two 
members  of  the  Cabinet  from  Massachusetts.  There 
was  none  from  the  great  State  of  Pennsylvania,  and 
there  was  none  from  the  South.  I  suppose  I  should 
not  have  to  go  beyond  the  columns  of  the  Boston 
Herald,  or  beyond  the  abundant  testimonials  of 
eminent  lawyers,  to  support  the  statement  that  Judge 
Hoar's  character  and  legal  ability  were  such  as  to 
render  no  other  explanation  of  his  selection  necessary. 
President  Grant  had  determined  upon  this  appoint- 
ment months  before.  September  23,  1869,  the  Presi- 
dent called  upon  Judge  Hoar  at  his  room,  stayed 
two  hours,  and  informed  him  that  there  was  no 
lawyer  from  the  Southern  States  he  felt  willing  to 
appoint  to  the  Court,  and  asked  him  to  accept  the 
office.  I  have  now  before  me  my  brother's  letter  to 
me  of  that  date,  in  which  he  states  these  facts,  and 
asks  my  advice  as  to  his  acceptance. 


THE    LEGAL   TENDER    CASES.  57 

Mr.  Justice  Grier,  early  in  December,  1869,  sent  in 
his  resignation,  to  take  effect  on  the  first  of  the 
following  February.  I  have  not  the  date  when  Judge 
Grier  sent  in  his  resignation.  But  the  nomination  of 
Air.  Stan  ton,  his  successor,  of  which  I  have  the  record 
with  me,  was  made  by  the  President  December  20, 

1869.  I  have  never  heard  that  anybody  ever  dreamed 
that  the  selection  of  Stanton  was  made  for  the  purpose 
of  packing  the  Court.     A  petition  asking  his  appoint- 
ment had  been  sent  to  the  President,  signed,  if  I  am 
not   mistaken,    by   every    Republican  member   of  the 
Senate.     He  had  been  a  great  lawyer.     He  had  been 
Attorney  General  of  the  United  States.     He  was  the 
great  War  Secretary.     With  the  exception    of  Grant 
and  Seward  and  Sumner  and  Chase,  he  was  undoubt- 
edly the  most  conspicuous  figure  in  American  public 
life.     He  was  a  Pennsylvanian,  and  belonged  to  the 
Circuit  to  which  the  President  would  naturally  look 
for  a  successor  to    Mr.  Justice  Grier.     Stanton  died 
after  accepting  the  office  and  before  taking  his  seat, 
on  the  24th  day  of  December,  1869.     Mr.  Hoar  was 
rejected  by  the  Senate  on  the  third  day  of  February, 

1870,  four  days   before   the   decision   of  Hepburn   v. 
Griswold. 

When  Judge  Hoar  was  nominated,  it  became  neces- 
sary for  the  President  to  look  out  for  another 
Attorney  General.  William  Strong  of  Pennsylvania 
was  offered  the  place.  He  came  to  Washington  to  see 
about  it.  I,  myself,  saw  him  there  and  was  introduced 
to  him.  I  knew  at  the  time  that  it  was  expected  that 
he  would  be  my  brother's  successor,  although  I  cannot 
say  from  memory  that  I  heard  him  say  that  he 
expected  to  take  the  place.  So  when  Stanton  died, 


58  MISCELLANEOUS    WRITINGS. 

and  Judge  Hoar  was  rejected  and  remained  in  the  old 
office,  it  seemed  almost  inevitable  that  Judge  Strong, 
if  he  were  fit  for  the  place,  should  be  offered  one  of  the 
vacant  Judgeships.  He  was  from  Grier's  circuit,  and 
from  Pennsylvania,  the  State  in  that  circuit  to  whose 
able  Bar  the  President  had  looked  for  an  Attorney 
General.  He  was  admirably  qualified  for  the  place. 
He  had  been  a  great  Judge  in  his  own  State.  He  was 
not  only  the  head  of  the  Bar  in  that  circuit,  certainly 
the  leading  Republican  lawyer,  and  he  held  a  place  in 
the  reverence  and  affection  of  the  people  who  knew 
him,  as  a  man  of  singular  purity  and  integrity,  which 
I  had  almost  said  was  equalled  by  that  of  John  Jay 
alone.  I  think  I  am  not  over  bold  when  I  affirm  that 
the  bitterest  partisan  in  this  country,  of  whatever 
political  opinion,  or  from  whatever  part  of  the  country 
he  may  come,  will  not  question  in  the  light  of  his  long 
service  upon  the  Bench,  that  the  nomination  of  William 
Strong  needs  no  explanation  other  than  the  statement 
of  the  conspicuous  merit  and  quality  of  the  man.  This 
nomination  would  have  been  practically  inevitable,  if 
the  legal  tender  decision,  or  the  legal  tender  law,  had 
never  been  heard  of. 

Stanton  died  December  24,  1869.  But  it  was  quite 
natural  that  the  President  should  not  nominate  his 
successor  until  the  question  of  Judge  Hoar's  confirma- 
tion or  rejection  was  settled.  If  Judge  Hoar  had  been 
confirmed,  the  original  plan  of  having  Mr.  Strong 
Attorney  General  might  have  been  carried  out,  although 
he  would  probably  have  been  appointed  to  Judge 
Grier's  place.  I  have  no  special  means  of  forming  an 
opinion  on  that  question.  But  the  President  awaited 
the  final  action  of  the  Senate,  which  undoubtedly  had 
been  expected  for  some  time  before  the  final  vote,  and 
then  sent  in  the  two  names  together. 


THE    LEGAL   TENDER    CASES.  59 

I  do  not  think  it  necessary  to  vindicate  the  selec- 
tion of  Mr.  Justice  Bradley,  any  more  than  that  of 
Judge  Strong.  I  have  heard  eminent  lawyers  compare 
him  with  Chief  Justice  Marshall,  in  the  vigor  and  grasp 
of  his  intellect,  and  attribute  to  him  a  variety  of 
accomplishments  which  would  not  be  attributed  to 
Marshall.  But  such  utterances,  when  we  experience  a 
great  public  loss  like  that  of  Judge  Bradley,  are  apt 
to  be  extravagant.  It  is  only  necessary  to  say,  what 
I  am  sure  every  living  lawyer  who  is  interested  in  such 
things  will  agree  to,  that  there  is  no  greater  or  purer 
judicial  fame  than  that  of  Judge  Bradley  among  the 
Judges  who  were  upon  the  Court  when  he  took  his 
place  upon  it,  or  who  have  been  upon  the  Court  from 
that  day  to  this. 

One  thing  ought,  however,  to  be  said.  It  was  by 
Judge  Bradley's  advice  that  the  great  railroad,  for 
which  he  was  counsel,  determined,  when  the  legal 
tender  laws  were  in  force,  that  honor  and  duty 
required  them  to  pay  their  debts  in  gold. 

Now,  having  stated  the  facts,  let  us  come  directly 
to  this  foul  charge.  It  can  only  be  sustained  by  prov- 
ing three  things : 

(1.)  That  the  confidence  of  the  Court  had  been 
betrayed,  and  the  views  of  the  Judges  upon  the  consti- 
tutionality of  the  legal  tender  law  which  they  had 
expressed  to  each  other  in  their  conference,  November 
27,  had  leaked  out ; 

(2.)  That  these  views  had  become  known  to 
President  Grant  and  to  the  Attorney  General  or  the 
Cabinet ; 

(3.)  That  in  consequence  of  such  knowledge  they 
had  done  something  they  would  not  have  done  but  for 
that. 


60  MISCELLANEOUS    WRITINGS. 

These  three  points  have  been  so  conclusively  dis- 
posed of  in  Senator  Hoar's  "'Refutation  "  that  further 
comment  on  that  question  is  unnecessary.  The  Court 
finally  having  its  full  complement  of  Judges,  and  the 
imperative  necessity  of  obtaining  a  final  decision  of  the 
questions  involved  in  the  case  of  Hepburn  v.  Grisv.'old 
forcing  itself  upon  the  Government,  application  for  a 
rehearing  of  them  was  made  by  the  Attorney  General, 
and  it  is  to  this  application  and  the  result  of  it  that 
the  "Statement"  prepared  by  the  majority  of  the 
Court,  and  herewith  published,  has  to  do.  Let  it 
speak  for  itself !— [EDITOR.] 


THE    LEGAL   TENDER    CASES.  61 


A  statement  of  facts  relating  to  the  order  of 
the  Supreme  Court  of  the  United  States 
for  a  re-argument  of  the  Legal-Tender 
Question,  in  April,  187O. 

[As  much  adverse  criticism  has  been  made  upon  the 
action  of  the  Supreme  Court  in  re-considering  the 
Legal-Tender  question  in  other  cases,  after  the  decision 
made  in  the  case  of  Hepburn  v.  Griswold,  (8  Wall. 
603),  the  following  statement  of  the  facts  connected 
therewith,  made  by  the  Justices  who  voted  for  the 
re-consideration,  is  due  to  the  truth  of  history.  It  was 
elicited  by  a  statement  made  by  Chief  Justice  CHASE, 
and  placed  by  him  on  the  files  of  the  court,  but  with- 
drawn when  he  learned  that  a  counter  statement 
would  be  made.  Inasmuch,  however,  as  his  statement 
has  evidently  been  used  by  his  biographer,  if  not  in 
other  ways,  it  is  no  more  than  just  that  the  statement 
of  the  Justices  should  be  printed  for  preservation  and 
for  future  reference  if  necessary. 

It  is  proper  to  add,  that  Mr.  Justice  GRIER,  one  of 
the  majority  who  decided  Hepburn  v.  Griswold,  had 
tendered  his  resignation  in  December,  1869,  to  take 
effect  the  1st  of  February,  1870  ;  and  that  the  decision 
in  that  case  was  not  announced  until  Monday,  the 
7th  of  February.  The  nomination  to  the  Bench  of 
Messrs.  STRONG  and  BRADLEY  was  made  on  the  same 
day,  but  had  been  prepared  the  week  before,  and  had 
been  under  consideration  for  some  time  previous,  in 
consequence  of  recommendations  from  the  Bar  and 
others,  without  any  reference  to  the  legal  tender 
question. 

The  statement  is  as  follows :] 


62  MISCELLANEOUS  WRITINGS. 

LATHAM  } 

v.  * 

THE  UNITED  STATES. 


DEMING 

v. 
THE  UNITED  STATES. 


The  very  singular  paper  filed  by  the  Chief  Justice 
in  these  cases,  in  regard  to  the  order  of  the  Court,  by 
•which  they  are  set  down  for  hearing  on  all  the  ques- 
tions presented  by  their  respective  records,  leaves  the 
court  no  alternative  but  to  present  a  reply  in  the  same 
manner  that  the  statement  of  the  Chief  Justice  is  pre- 
sented. 

The  paper  itself  is  without  precedent  in  the  records 
of  the  Court.  On  the  first  day  of  this  month  the 
Court  announced,  by  the  mouth  of  the  Chief  Justice, 
that  these  cases  would  be  heard  on  the  llth  day  of 
the  month,  on  all  the  issues  involved  in  the  record. 

In  making  this  announcement  the  Chief  Justice  did 
all  that  was  necessary  to  prevent  any  misconception 
of  his  opinions  by  stating  that  he  and  Justices  Nelson, 
Clifford  and  Field  dissented  from  the  order.  This 
statement  was  placed  in  the  records  of  the  Court. 

The  present  statement  [that  of  the  Chief  Justice], 
therefore,  was  not  necessary  to  explain  the  position 
of  those  gentlemen,  or  to  vindicate  their  action,  for  it 
was  well  understood  and  was  assailed  by  no  one. 

It  is  an  effort  to  take  the  action  of  the  Court  out  of 
the  ordinary  and  usual  rules  which  govern  it  in  the 
simple  matter  of  deciding  when  it  will  hear  a  case,  and 
what  shall  be  heard  in  that  case,  and  subject  the  Court 
to  censure,  because  it  will  not  consent  to  have  the  rights 


THE    LEGAL    TENDER    CASES.  63 

of  the  parties  in  such  cases  controlled  by  the  vague 
recollection  of  some  members  of  the  Court,  presented 
only  in  conference,  not  reduced  to  writing,  nor  ever 
submitted  to  the  consideration  of  counsel  charged  with 
the  conduct  of  the  cases.  If  this  be  a  just  ground  of 
censure,  we  must  submit  to  it,  and  will  be  content  to 
bear  it. 

In  reference  to  the  facts  on  which  the  Court  acted, 
it  is  conceded  by  all  that  the  cases,  having  been  passed 
without  losing  their  place  on  the  docket,  were  entitled 
to  a  preference  whenever  either  party  should  call  them 
up  and  insist  on  a  hearing.  The  Attorney-General,  on 
behalf  of  the  United  States,  did  this  on  Friday,  March 
25.  At  the  same  time  he  stated  that  the  cases  pre- 
sented the  same  question  in  regard  to  the  constitu- 
tionality of  the  legal  tender  statutes  that  had  been 
decided  in  the  case  of  Hepburn  v.  Griswold,  at  the 
present  term,  and  asked  the  court  to  hear  argument 
on  that  question.  Mr.  Carlisle,  counsel  for  Latham, 
was  present,  and  reminded  the  Court  that  some 
six  weeks  before  he  had  asked  that  his  case  might  be 
set  down  for  hearing,  and  that  he  now  wished  for  an 
early  hearing,  but  hoped  that  the  legal  tender  question 
would  not  be  reconsidered  in  his  case. 

He  did  not  at  that  time  intimate  in  any  manner 
that  there  had  been  any  agreement  of  counsel,  or  any 
action  of  the  Court,  which  precluded  that  question  in 
his  case. 

The  next  day  being  conference  day,  the  Court  acted 
on  the  motion  of  the  Attorney  General ;  but  on  Mon- 
day morning,  before  it  could  be  announced,  the  Chief 
Justice  produced  a  letter  from  Mr.  Carlisle  to  him, 
remonstrating  against  reopening  the  legal  tender  ques- 


64  MISCELLANEOUS    WRITINGS. 

tion  in  his  case,  and  insisting  that  he  had  a  right  to 
expect  that  the  case  of  Hepburn  v.  Griswold  would,  as 
to  that  point,  decide  his  case  also  ;  but  he  did  not 
state  in  that  letter  that  any  order  of  the  Court  had 
been  made  to  that  effect,  or  any  agreement  of  counsel^ 
verbal  or  otherwise. 

This  letter  of  Mr.  Carlisle,  the  only  written  docu- 
ment, paper  or  statement  ever  presented  to  the  Court 
before  its  order  was  announced,  as  a  foundation  for 
refusing  to  hear  the  legal  tender  question  in  the  two 
cases,  was  never  filed  with  the  clerk,  and  cannot  now 
be  found  by  us. 

The  Court,  in  deference  to  Mr.  Carlisle's  statement, 
made  an  order  that  on  Thursday,  the  31st  of  March, 
the  whole  matter  should  be  heard  in  open  Court.  On 
that  day  the  Attorney-General,  who  had  been  shown 
Mr.  Carlisle's  letter,  appeared  and  insisted  on  his 
motion.  Mr.  Carlisle  opposed  it,  and  in  argument 
gave  his  history  of  the  cases  in  this  Court.  He  also 
argued  that  from  that  history  he  had  a  right  to  expect 
that  whatever  should  be  the  judgment  of  the  Court  in 
Hepburn  v.  Griswold  as  to  the  constitutionality  of  the 
legal  tender  acts,  should  conclude  that  matter  in  his 
case.  But  he  did  not  state  or  rely  on  any  agreement 
with  counsel  of  the  government  of  the  one  case  by  the 
other,  or  any  express  order  of  the  Court  to  that  effect, 

Mr.  Merriman,  the  senior  counsel  in  Deming's  case, 
was  present  at  this  argument.  He  took  no  part  in  it. 
He  made  no  objection  to  the  argument  of  the  legal 
tender  question  in  his  case,  and  did  not  then  claim,  nor 
has  he  ever  claimed  in  court,  that  that  question  was 
precluded  by  any  action  of  the  Court,  or  agreement  of 
counsel. 


THE    LEGAL   TENDER    CASES.  65 

On  full  consideration  of  all  that  was  then  before  it, 
the  Court  announced  on  Friday  morning,  the  1st  of 
April,  that  the  two  cases  would  be  heard  on  all  the 
questions  presented  by  the  records  on  Monday,  the 
llth,  ten  days  thereafter ;  and  at  the  same  time  the 
Chief  Justice  announced  the  dissent  of  himself  and  the 
other  Justices  already  mentioned,  to  this  order. 

When  that  day  arrived,  a  letter  was  presented  from 
Mr.  Carlisle,  dated  in  this  city,  of  the  Saturday  before, 
in  which  he  said  he  had  not  had  time  to  prepare  for 
the  argument,  and  that  he  had  an  engagement  to  try 
a  case  in  New  York  on  Tuesday,  which  he  had  not 
been  able  to  postpone,  and  again  urged  the  injustice  of 
a  reargument  of  the  legal  tender  question  in  his  case, 
and  stated  that  he  understood  when  his  case  had  been 
passed,  that  it  would  abide  the  decision  in  Hepburn  v. 
Griswold.  A  telegram  was  also  read  stating  Mr. 
Merriman's  illness.  The  Court  from  the  bench  post- 
poned the  hearing  for  one  week. 

Since  that  time  the  Chief  Justice  has  received  a  letter 
from  Mr.  Norton,  former  Solicitor  of  the  Court  of 
Claims,  who  once  had  some  charge  in  that  capacity  of 
these  cases,  in  which  he  states,  that  when  the  cases 
were  continued  in  March,  1868,  he  understood  that 
they  would  be  governed  as  to  the  legal  tender  ques- 
tion by  the  decision  of  Hepburn  v.  Griswold, 

Of  both  these  letters,  now  the  only  papers  on  file 
in  regard  to  the  matter,  it  is  to  be  observed— 

1.  That  they  were  presented  after  the  Court  had 
appointed  a  day  for  hearing  all  that  might  be  said  for 
or  against  the  motion,  and  after  both  parties  had  had 
a  full  hearing,  and  after  the  Court  had,  on  full  consid- 
eration of  all  that  was  before  it,  fixed  the  day  for 


66  MISCELLANEOUS    WRITINGS. 

hearing,  and  decided  to  hear  the  whole  matter  in  issue. 
Of  Mr.  Norton's  letter  it  may  be  further  said,  that  it 
was  made  after  Mr.  Carlisle's  two  efforts  to  prevent  a 
hearing  had  both  been  considered  and  overruled,  and 
is  made  by  a  gentleman  not  now  engaged  in  the  cases, 
without  verification,  and  without  notice  to  any  party, 
or  counsel  in  the  case. 

2.  That  neither  of  them  assert  that  any  agreement, 
contract  or  promise  was  made  by  the  counsel  of  the 
United  States,  that  Hepburn  v.  Griswold  should  con- 
trol these  cases  in  any  matter  of  law  whatever. 

We  do  not  doubt  that  counsel  for  appellants  and 
counsel  for  the  United  States  believed,  and  in  that 
sense  understood,  that  the  judgment  of  the  Supreme 
Court  in  Hepburn  v.  Griswold,  and  the  other  legal 
tender  cases  argued  at  the  same  time,  would  establish 
principles  on  that  subject  that  would  govern  the  cases 
now  under  consideration,  and  all  other  cases  in  which 
the  same  questions  might  arise. 

This  understanding  was  no  more  than  the  expecta- 
tion, usual  and  generally  well  founded,  that  a  principle 
decided  by  this  Court  will  govern  all  the  cases  falling 
within  it.  But  this  expectation  must  be  subordinated 
to  the  possibility,  fortunately  rare,  that  the  Court  may 
reconsider  the  questions  so  decided  ;  and  confers  no 
absolute  right. 

We  have  thus  far  considered  only  what  occurred 
in  open  Court  since  the  motion  of  the  Attorney-General 
was  made  to  take  up  these  cases  ;  and  in  what  has 
been  said  the  Court,  consisting  of  Justices  Swayne, 
Miller,  Davis,  Strong  and  Bradley,  all  concur. 

But  the  paper,  to  which  we  are  replying,  under 
takes  to  give  a  history  of  the  connection  of  these  two 


THE   LEGAL   TENDER    CASES.  67 

cases  with  certain  others,  involving  the  legal  tender 
question,  so  much  at  variance  with  the  records  of  the 
Court,  and  with  the  recollections  of  the  three  Justices 
of  the  Court  first  above  named  (the  other  two  not 
then  being  members  of  the  Court),  that  we  do  not  feel 
at  liberty  to  permit  it  to  pass  in  silence. 

This  statement  invades  the  sanctity  of  the  confer- 
ence room,  and  in  support  of  its  assault  upon  the 
Court,  does  not  hesitate  to  make  assertions  which  are 
but  feebly  supported  by  the  recollections  of  a  part  of 
the  four  Judges  who  join  in  it,  but  which  are  incon- 
sistent with  the  record  of  the  Court,  and  are  contra- 
dicted by  the  clearest  recollections  of  the  other  three 
Judges  who  then  composed  a  part  of  the  Court,  who 
oin  in  this  answer. 

It  is  attempted,  by  speaking  of  these  cases  as 
two  out  of  nine,  which  the  Court  constantly  had  in 
view  as  involving  the  legal  tender  question,  to  sustain 
the  inference,  that  they  were  to  be  decided  with  the 
others,  and  were  submitted  to  the  Court,  so  far  as  the 
legal  tender  question  was  concerned,  at  the  same  time. 
Now,  the  first  and  only  time  the  legal  tender  cases 
were  grouped  together  in  any  order  of  the  Court  was 
on  the  2d  day  of  March,  1868,  when  the  following  order 
was  made  of  record  : 

*'  No.  89.  S.  P.  &  H.  P.  Hepburn  v,  Henry  Griswold,  \ 
"  No.  225.  Frederick  Bronson  v.  Peter  Rodes.  } 

"  Ordered  by  the  Court,  That  these  cases  stand 
continued  for  re-argument  by  counsel  at  bar  on  the 
first  Tuesday  of  the  next  term,  and  that  the  Attorney 
General  have  leave  to  be  heard  on  the  part  of  the 
United  States." 


68  MISCELLANEOUS    WRITINGS. 

"No.  35.  Mandeibaum  v.  People  of  Nevada. 
"  No.  60.  The  County  of  v.  The  State  of  Oregon. 
"No.  67.  John  A.   McGlynn,  Ex'r,  &c.,  v.  Emily 

Magraw,  Ex'trix. 
"  No.  71.  Joseph  C.  Willard  v.  Benj.  O.  Tayloe. 

"  Ordered  by  the  Court,  That  these  causes  stand  con- 
tinued to  the  next  terra,  \vith  leave  to  counsel  to 
reargue  the  same  if  they  see  fit  on  any  question  com- 
mon to  them  and  to  Nos.  89  and  225." 

The  Chief  Justice  says  that  there  were  nine  of  these 
cases  in  all,  which  were  to  be  governed  by  the  decision 
of  the  Court  made  on  the  general  argument  in  regard 
to  legal  tender.  Here  are  six  of  them  grouped  in  these 
two  entries  standing  together.  If  Latham's  and 
Deming's  cases  stood  on  the  same  agreement,  or  the 
same  order,  why  were  they  not  included  ?  It  will  not 
do  to  say  that  they  were  carelessly  omitted,  for  the 
order  is  evidently  drawn  with  particularity,  and  there 
can  be  no  doubt  that  it  includes  all  that  it  was  intended 
to  include. 

Nor  will  it  do  to  say  that  these  cases  could  not  be 
included  because  they  had  other  questions  besides  legal 
tender,  for  the  cases  of  Willard  v.  Tayloe  and  Mandei- 
baum v.  Nevada,  which  are  in  the  order,  included  other 
questions,  and  were  finally  decided  without  touching 
that  question.  The  case  of  Horwitz  v.  Butler,  which 
is  necessary  to  make  out  the  nine  alluded  to,  although 
it  involved  nothing  else  but  legal  tender,  was  argued 
by  itself  after  Bronson  v.  Rodes  was  decided.  There 
was,  therefore,  evidently  no  general  agreement  or 
order,  that  cases  not  named  should  abide  those  that 
were,  because  they  involved  that  question. 

It  is  said  that  subsequently  to  the  decision  of 
Hepburn  v.  Griswold,  these  cases  "  were  called  on  sev- 


THE    LEGAL    TENDER    CASES.  69 

eral  occasions,  and  it  was  again  stated  by  the  Chief 
Justice  from  the  bench  that  the  legal  tender  question 
having  been  determined  in  the  other  cases  would  not 
be  again  heard  in  these." 

•  This  statement  is,  as  we  are  satisfied,  founded  in 
an  entire  misapprehension.  If  any  statement  had 
been  made  from  the  bench  that  no  argument  would 
be  heard  in  these  cases  of  the  legal  tender  question,  it 
would  certainly  have  attracted  the  attention  of  the 
Judges  who  did  not  agree  to  that  opinion,  and  would 
have  met  with  a  denial  on  their  part  so  emphatic  as 
to  be  remembered. 

The  cases  now  under  consideration  \vere  numbered 
six  and  seven  of  the  docket  of  this  term.  They  had, 
therefore,  as  the  records  of  the  Court  show,  been  called 
and  passed  on  the  8th  December,  two  months  before 
the  announcement  of  the  decision  of  Hepburn  v.  Gris- 
wold,  which  was  February  8. 

It  further  appears,  that  on  the  10th  December  the 
Attorney  General  moved  to  dismiss  the  appeal  in 
Latham's  case  because  it  had  not  been  taken  hi  due 
time.  The  opinion  of  the  Chief  Justice  is  entered  of 
record  overruling  this  motion,  because,  though  the 
appeal  was  not  allowed  within  ninety  days,  it  had 
been  prayed  within  that  time.  In  all  these  orders  no 
hint  is  given  that  these  cases  were  to  abide  the  judg- 
ment in  Hepburn  v.  Griswold. 

Very  soon  after  the  decision  of  Hepburn  v.  Griswold, 
Mr.  Carlisle  called  attention  to  the  Latham  case,  and 
asked  that  an  early  day  be  assigned  for  its  hearing. 
The  Chief  Justice  was  about  to  do  this  in  open  Court, 
when  Mr.  Justice  Miller  requested  him  to  take  the 
matter  into  conference.  When  the  motion  was  called 


70  MISCELLANEOUS   WRITINGS. 

in  conference,  Mr.  Justice  Miller  said  that  the  case 
involved  the  legal  tender  question,  and  that  he  hoped 
it  would  not  be  set  for  hearing  until  the  two  vacancies 
on  the  bench  were  filled,  as  nominations  were  then 
pending  for  both  of  them.  No  objection  was  made  to 
this,  and  the  motion  of  Mr.  Carlisle  was  postponed 
indefinitely.  The  Chief  Justice  remarked,  as  those  of 
us  who  were  present  well  recollect,  that  he  considered 
the  legal  tender  question  as  settled  by  Hepburn  v. 
Griswold,  as  far  as  it  went,  but  none  of  the  Judges 
gave  any  intimation  that  there  was  anything  in  the 
history  of  these  which  precluded  that  question  from 
being  considered  in  them.  If  it  could  not,  there  was 
no  reason  for  postponing  their  hearing  for  a  full  bench, 
as  was  done,  for  they  are  otherwise  quite  unimport- 
ant, either  in  principle  or  amount,  and  were  entitled 
to  a  speedy  hearing,  as  they  had  been  long  delayed. 

Conceding,  as  we  do  freely,  that  our  brethren  be- 
lieve that  such  an  order  or  statement  was  made 
verbally,  should  it  govern  our  action  ? 

We  cannot  consent  to  this,  because  if  any  order  or 
statement  was  made  orally,  unless  it  was  reduced  to 
record,  or  is  assented  to  or  admitted  by  the  counsel 
for  the  United  States,  it  is  no  sufficient  legal  ground 
for  refusing  to  hear  the  appellee  on  any  defence  found 
in  the  record  of  these  cases. 

In  support  of  this  we  hold  the  law  to  be  that 
without  some  order  of  Court  made  of  record,  or  some 
written  stipulation  signed  by  the  party  or  his  counsel, 
or  some  verbal  agreement  of  the  parties  established  to 
the  satisfaction  of  the  Court,  no  party  can  be  deprived 
of  the  right  to  any  defence  in  this  Court  which  the 
record  of  his  case  presents. 


THE    LEGAL    TENDER    CASES.  71 

Much  stress  is  laid  in  the  paper  we  are  con- 
sidering upon  the  long  deliberation,  the  clear  majority 
and  the  liberality  of  the  Court  in  giving  time  to  the 
minority  to  file  the  dissent  in  Hepburn  v.  Griswold, 
and  we  are  freely  told  the  steps  in  conference  which  led 
to  the  final  result. 

The  minority  in  that  case  are  profoundly  impressed 
with  the  belief  that  the  circumstances  of  that  decision, 
if  well  understood,  would  deprive  it  of  the  weight 
usually  due  to  the  decisions  of  this  Court.  The  cases 
had  been  on  hand  eighteen  months  or  more.  There 
was  no  pressure  for  a  decision.  There  was  one  vacancy 
on  the  bench.  It  was  believed  that  there  would  soon 
be  another.  Under  these  circumstances  the  minority 
begged  hard  for  delay  until  the  bench  was  full.  But  it 
was  denied.  When,  after  all  this  argument  and  pro- 
tracted consideration,  the  case  was  taken  up  in  confer- 
ence, and  was  there  discussed  for  three  or  four  hours,  in 
which  discussion  every  Judge  took  part,  the  vote  was 
taken  and  the  Court  was  found  to  be  equally  divided 
on  affirming  or  reversing  the  judgment  of  the  Court  of 
Appeals  of  Kentucky.  *  Before  the  conference  closed, 
however,  the  vote  of  one  of  the  Judges  who  had  been 
for  reversing  the  judgment  was  changed.  The  circum- 
stances under  which  this  vote  was  changed  were  very 
significant,  but  we  do  not  deem  it  proper  to  state 
them  here.  Without  that  change  no  opinion  could 
have  been  rendered  holding  the  legal  tender  statutes 
unconstitutional. 

The  question  thus  decided  is  of  immense  importance 
to  the  government,  to  individuals  and  to  the  public. 
The  decision  only  partially  disposed  of  the  great  ques- 
tion to  which  it  related,  and  has  not  been  received  by 


72  MISCELLANEOUS   WRITINGS. 

the  profession  or  by  the  public  as  conclusive  of  the 
matter.  If  it  is  ever  to  be  reconsidered,  a  thing  which 
we  deem  inevitable,  the  true  interests  of  all  demands 
that  it  be  done  at  the  earliest  practicable  moment. 

We  did  not  seek  the  occasion,  but  when  the  case 
seemed  fairly  before  us  we  could  not  shrink  from  our 
duty  as  we  understood  it. 

We  could  not  deny  to  a  party  in  Court  the  right 
which  the  law  gave  him  to  a  hearing  on  all  the  defences 
which  he  claimed  to  have.  When,  on  the  other  hand, 
the  rules  of  the  Court  did  not  admit  of  a  rehearing  in 
the  case  of  Hepburn  v.  Griswold,  we  did  not  attempt 
to  strain  or  modify  those  rules  to  reach  the  question. 
In  this  case,  as  in  all  others,  we  have  endeavored  to 
act  as  the  law  and  our  duty  required. 

The  foregoing  paper  of  eighteen  pages  [in  the  man- 
uscript] was  prepared  and  agreed  to  as  the  reply  of 
the  Court  to  a  paper  filed  by  the  Chief  Justice  on  behalf 
of  himself  and  Justices  NELSON,  CLIFFORD  and  FIELD. 
That  paper  has  been  withdrawn  by  them  from  the  files 
of  the  Court,  and  this  is,  therefore,  not  filed. 

We  all  concur  in  the  statements  of  the  foregoing 
paper  as  to  the  reasons  for  our  action  in  the  matter 
to  which  it  refers,  and  the  statement  of  facts  we  declare 
to  be  true  so  far  as  they  are  matters  which  took  place 
while  we  were  respectively  members  of  the  Supreme 
Court. 

WASHINGTON,  April  30, 1870. 

N.  H.  SWAYNE. 
SAM.  F.  MILLER. 
DAVID  DAVIS. 
W.  STRONG. 
JOSEPH  P.  BRADLEY. 


THE    LEGAL   TENDER    CASES.  73 

[NOTE. — The  original  draft  of  the  statement,  as 
drawn  by  Justice  MILLER,  from  the  asterisk  on  page  71, 
concluded  in  the  words  printed  below.  But,  on  con- 
sultation with  the  other  Justices  at  the  time  it  was 
thought  best  to  omit  it,  as  Justice  GRIER  was  still 
living,  and  might  be  pained  if  it  should  come  to  his 
knowledge.  Justice  MILLER,  however,  preserved  it,  and 
placed  it  in  the  same  envelope  with  the  statement  as 
modified,  where  it  was  found  after  his  death.  It  was 
as  follows  :] 

*  This  would  have  affirmed  the  judgment,  but  settled 
no  principle. 

An  attempt  was  then  made  to  convince  an  aged  and 
infirm  member  of  the  Court  that  he  had  not  understood 
the  question  on  which  he  voted.  He  said  that  he 
understood  the  Court  of  Appeals  of  Kentucky  had 
declared  the  legal  tender  law  unconstitutional,  and  he 
voted  to  reverse  that  judgment.  As  this  was  true,  the 
case  of  Hepburn  v.  Griswold  was  declared  to  be 
affirmed  by  a  Court  equally  divided,  and  we  passed  to 
the  next  case. 

This  was  the  case  of  McGlynn,  Ex.,  v.  Magraw, 
and  involved  another  aspect  of  the  legal  tender  ques- 
tion. In  this  case  the  venerable  Judge  referred  to,  for 
whose  public  services  and  character  we  entertain  the 
highest  respect,  made  some  remarks.  He  was  told 
that  they  were  inconsistent  with  his  vote  in  the  former 
case.  He  was  reminded  that  he  had  agreed  with  a 
certain  member  of  the  Court  in  conversation  on 
propositions  differing  from  all  the  other  Judges,  and 
finally  his  vote  was  obtained  for  affirming  Hepburn  v. 
Griswold,  and  so  the  majority,  whose  judgment  is  now 
said  to  be  so  sacred,  was  obtained. 

To  all  this  we  submitted.  We  could  do  nothing 
else.  In  a  week  from  that  day  every  Judge  on  the 


74  MISCELLANEOUS    WRITINGS. 

bench  authorized  a  committee  of  their  number  to  say 
to  the  Judge  who  had  reconsidered  his  vote,  that  it 
was  their  unanimous  opinion  that  he  ought  to  resign. 

These  are  the  facts.  We  make  no  comment.  We  do 
not  say  he  did  not  agree  to  the  opinion.  We  only  ask, 
of  what  value  was  his  concurrence,  and  of  what  value 
is  the  judgment  under  such  circumstances  ? 

That  question  thus  decided  is  of  immense  import- 
ance to  the  Government,  to  the  public,  and  to  indi- 
viduals. The  decision  only  partially  disposed  of  the 
great  question  to  which  it  related,  and  has  not  been 
received  by  the  profession  or  by  the  public  as  conclud- 
ing the  matter.  If  it  is  ever  to  be  reconsidered,  a  thing 
which  we  deem  inevitable,  the  best  interests  of  all 
concerned,  public  and  private,  demands  that  it  be  done 
at  the  earliest  practicable  moment. 

We  have  not  sought  the  occasion,  but  when  the 
case  is  fairly  before  us,  if  it  shall  be  found  to  be  so  in 
these  cases,  we  shall  not  shrink  from  our  duty,  what- 
ever that  may  be.  For  the  present,  we  believe  it  is 
our  duty  to  hear  argument  on  this  question  in  these 
cases. 

Whether  the  judgment  of  the  Court  in  Hepburn  v. 
Griswold  shall  be  found  by  the  Court  to  be  conclusive, 
or  whether  its  principles  shall  be  reconsidered  and 
reversed,  can  only  be  known  after  the  hearing  ;  and  in 
the  final  judgment  of  the  Court,  whatever  it  may  be, 
we  are  satisfied  there  will  be  acquiescence. 

At  all  events,  the  duty  is  one  which  we  have  not 
sought— which  we  cannot  avoid. 


PERSONAL, 
POLITICAL,   HISTORICAL 

AND 

PHILOSOPHICAL. 


BURR,  AARON. 


I  have  just  finished  (November  29,  1837)  the  perusal 
of  the  second  volume  of  Davis's  Memoirs  of  Aaron 
Burr.  I  took  up  that  work  with  the  most  bitter 
prejudices  against  Burr,  but  I  must  confess  that  a 
perusal  of  it  has  very  much  softened,  if  not  entirely 
eradicated,  my  detestation  of  his  character.  Burr,  no 
doubt,  was  a  persecuted  man.  He  had  intrigue,  per- 
haps too  much  like  Pope,  he  practiced  it  when  a 
straightforward  course  would  have  answered  his  turn 
as  well.  This  rendered  him  suspected  ;  being  suspected, 
made  him  suspicious ;  being  thus  suspicious  and  sus- 
pected, his  conduct  toward  General  Hamilton,  on  the 
one  hand,  and  the  conduct  of  the  administration 
towards  him  in  relation  to  the  liberation  of  Mexico  on 
the  other,  are  accounted  for.  He  went  too  far  in  calL 
ing  out  General  Hamilton,  although  he  received  serious 
provocations  which  had  never  been  caused,  nor  revenged 
by  similar  conduct  on  his  part.  He  was  above  abusing 
a  rival,  but  he  would  take  all  honorable  means  of 
triumphing  over  him.  Hamilton  was  not  above  abus- 
ing a  rival ;  but  he  would  not  go  to  such  lengths, 
perhaps,  to  secure  a  triumph.  As  to  his  being  guilty 
of  treason  in  1806  and  1807,  there  is  very  little 
ground  to  imagine  such  a  thing.  Aaron  Burr  was  not 
that  devil  incarnate  which  I  had  supposed  him  to  be. 

The  letters  which  passed  between  him  and  his 
daughter  are  some  of  the  finest  models  of  epistolary 
writing  I  ever  saw.  I  think  them  superior  to  Lady 
Mary  W.  Montague— not  in  mind,  nor  in  polish,  nor  in 


78  MISCELLANEOUS   WRITINGS. 

literary  merit,  nor  in  refinement,  but  in  that  playful 
ease,  and  in  that  eternal  sprinkling  of  the  purest  attic 
salt  which  should  characterize  the  epistolary.  They 
are  perfect  specimens  of  letters.  Everybody  can  see 
that  the  author  of  the  book  has  crowded  as  many  of 
these  letters  into  it  as  he  possibly  could,  in  order  to 
exhibit  Burr  in  his  most  attractive  light— his  private 
relations  —  and  thus  abstract  the  attention  of  the 
reader  from  the  events  of  his  public  life.  Though,  on 
a  perusal  of  the  book,  one  could  not  point  out  any 
particular  event  of  Burr's  public  life  on  which  the 
author  could  have  been  more  full  than  he  has  been. 
On  the  whole,  the  work  is  a  good  one,  in  my  view,  and 
will  tend  to  repress  the  imputation  of  sinister  and  vin- 
dictive motives  to  public  men,  by  teaching  the  lesson 
that  a  man  may  be  hunted  down  as  a  monster  in 
society,  who,  to  his  own  intimate  friends,  exhibited 
the  tenderest,  noblest  feelings  of  our  nature. 


A  LOVE  LETTER. 

SEPTEMBER  6,  1838.— "This  world  has  not  so 
many  charms  for  me  as  it  once  had.  I  have  been 
tossed  on  its  ruder  surges  so  long  that  I  have  learned 
to  look  for  pure  and  abiding  happiness  in  some  more 
pure  and  abiding  world.  But  life  must  be  spent  here  . 
duties  must  be  discharged  here,  and  I  should  be 
ungrateful  to  my  Maker  if  I  did  not  believe  that  He 
has  provided  me  with  some  source  of  happiness  con- 
nected with  the  situation  in  -which  He  has  seen  fit  to 
place  me.  But,  where  is  happiness  to  be  found.  She 


ESSAYS— LETTERS.  79 

is  not  seen  in  the  giddy  world  of  fashion,  nor  does  she 
smile  on  the  plumes  of  vanity  and  conceit.  She  is 
social  in  her  nature,  and  domestic  in  her  habits.  Sweet 
in  her  disposition,  her  smile  is  bewitching.  Tenderness 
beams  in  her  eyes,  and  affection  throbs  in  her  heart. 
Her  own  fireside  is  her  empire ;  beyond  it  her  wishes 
never  extend.  Good  sense  and  intelligence  are  her 
attendants  ;  religion  is  her  friend."  Such  is  the  picture 
which  I  have  often  drawn  of  the  purest  earthly  bliss — a 
picture  which  has  had  its  counterpart  in  real  life,  but 
which  I  have  had  little  hope  ever  to  realize. 

(NOTE.)    This  extract  Is  part  of  a  love  letter  which,  however,  was 
never  sent  to  the  person  for  whom  it  was  intended. 


ADMISSION  TO  THE  BAR. 

DECEMBER  29,  1839.— On  Wednesday  evening, 
November  13, 1839,  I  was  examined,  at  Trenton,  before 
the  Justices  of  the  Supreme  Court  of  New  Jersey,  on 
application  for  license  to  practice  law  ;  and  on  the 
next  day,  licensed  and  admitted  to  practice  as  an 
attorney  at  law  and  solicitor  in  chancery  in  said  State. 
The  following  Friday  I  started  for  Albany,  and  after 
staying  at  home  nearly  five  weeks,  returned  to 
Newark  Wednesday,  18th  inst.,  where  I  still  remain, 
undecided  where  to  settle.  Whilst  at  home,  I  witnessed 
much  of  the  Helderberg  disturbances,  which  elicited  a 
call  from  the  Governor  of  New  York  on  the  militia  to 
suppress  them.  No  blood  was  shed  but  that  of  divers 

pigs  and  fowls. 

(Signed)    J.  P.  BRADLEY. 


80  MISCELLANEOUS   WRITINGS. 

A  PICTURE. 

George  B.  Corkhill,  of  Washington,  D.  C.,  lately 
purchased  an  engraving,  a  little  old  and  rough  look- 
ing, exhibiting  a  Judge  with  ass's  ears  -sitting  on  a 
tribunal,  with  Justice  blindfolded  on  his  left.  Before 
him  an  old  man  brings  forward  a  female  figure,  who 
holds  a  torch  in  one  hand,  and  with  the  other  clutches 
by  the  hair  a  little  imp,  who  makes  wry  faces  and 
kicks  about  resistingly.  Behind  the  female  figure  are 
some  attendants  of  hers,  one  of  whom  carries  a  drag- 
net on  her  shoulder.  Guards  stand  at  the  door  half 
concealed.  In  the  extreme  left  hand  upper  corner  an 
open  window  shows  a  demon  in  the  distance  on  the 
wing,  dragging  away  a  female  figure,  as  if  it  were 
a  spirit  taken  to  perdition.  The  engraving  has  a 
legend,  as  follows  : 

Attrahit  insonte  perjura  calumnia  Apelle. 
In  jus  immiscens  fanda  nefanda  simul 
Auriculis  judex  insignis  tepora  aselli 
Jus  pariter  reddit  collite  cu  comite 
Temporis  at  demum  quae  fertur  filia  seros 
In  lucem  profert  qui  latuere  dolos. 

Which  may  be  freely  translated  thus  : 

"  False  swearing  Calumny  drags  into  Court 
Apelles  innocent.     The  stupid  Judge, 
Confounding  Right  and  Wrong,  his  temples  crowned 
With  Ass's  ears,  with  blindfold  Justice  by, 
Awards  alike  to  both— the  Good— the  Bad. 
Time's  daughter  (Truth),  who  now  at  length  is  brought, 
Reveals  the  hidden  Fraud,  alas,  too  late  ! 

The  moment  seized  by  the  artist  seems  to  be  that 
at  which  Truth,  with  torch  in  hand,  and  clutching  by 
the  hair  the  struggling  imp,  representing  the  fraiid 


ESSAYS— LETTERS.  81 

that  has  lain  concealed,  and  which  has  just  been 
dragged  from  the  water,  reveals  to  the  Court  the 
awful  mistake  it  has  made.  The  Judge  seems  greatly 
surprised,  and  poor  Justice  hangs  down  her  head  in 
shame.  The  old  man  who  brings  "Truth"  forward 
may  be  either  "  Time  "  or  the  agonized  father  of  the 
victim,  who  was  unjustly  condemned,  and  whose  spirit 
is  seen  to  the  left  carried  away  by  a  demon.  The 
drag-net  of  "  Truth,"  held  by  one  of  her  attendants, 
shows  her  perseverance  in  finding  out  the  fraud,  and 
reminds  us  how  all  hidden  things  are  brought  to  light 
by  her  indefatigable  efforts,  even  from  the  bottom  of 
the  sea. 

The  engraving  has  inscribed  on  a  slab  or  caryatides, 
in  the  body  of  the  piece,  this  note :  "  Georgius  Ghisi, 
Mant.  f  1560."  That  is,  executed  by  George  Ghisi  of 
Mantua  1560.  At  the  foot  is  inscribed  on  a  scroll, 
"Luca  Penis,  in."  That  is,  "  Luca  Penni's  design." 
Luca  Penni  was  born  1500,  and  was  a  scholar  of 
"  Raphael."  Ghisi  of  Mantua  was  a  generation  later. 
In  Spooner's  Biographical  history  of  the  Arts,  under 
the  title  "Ghisi,  George,"  is  a  list  of  some  of  Ghisi's 
engravings,  and  amongst  others,  this,  "  An  allegorical 
subject  representing  a  Judge  on  his  tribunal  with  ass's 
ears,  after  Luca  Penni."  The  engraving  purchased  by 
Mr.  Corkhill  is  probably  a  French  copy.  I  judge  that 
it  is  not  an  original,  because  wanting  the  artist's 
monogram,  and  because  it  has  an  imprimatur,  "cum 
privilegio  regis."  It  may  have  been  copied  in  the 
reign  of  Louis  XIV  or  XV. 

(Signed)     J.  P.  BRADLEY. 

JUNE,  1882. 


82  MISCELLANEOUS    WRITINGS. 

201  "  I "  STREET,  June  9,  1882. 
DEAR  MR.  CORKHILL  : 

In  looking  over  my  version  of  the  legend  of  your 
engraving,  it  occurs  to  me  that  the  "  immiscens  fanda 
nefanda  simul  "  may  be  attributed  to  the  Prosecutor, 
"  Calumnia,"  rather  than  to  the  Judge,  whose  greatest 
crime  appears  to  be  his  stupidity.  Correcting  it  on 
this  theory,  the  rendering  would  be  : 

False  swearing  Calumny  drags  into  Court 

Apelles  innocent,  and  guileful  pleads. 

Toge.ther  mixing  up  things  Right  and  Wrong. 

The  Judge  with  ass's  ears  on  temples  grown, 

Like  judgment  gives,  with  blind  associate  by, 

Time's  daughter  (Truth),  who  now  at  length  is  brought, 

Reveals  the  hidden  fraud,  alas,  too  late. 

This  is  more  liberal,  and  seems  to  be  more  in  keep- 
ing with  the  original. 

Yours  truly, 

(Signed)     JOSEPH  P.  BRADLEY. 


TRANSLATION  OF  LUCAN'S  EULOGY  ON  POMPEY. 

Casta  domus  luxuque  carens,  corruptaque  ninquam 
Fortuna  domini,  clarum  et  venerabile  nomen 
Gentibus,  et  multum  nostrae  quod  proderat  urbi. 

A  household  chaste,  of  luxury  devoid 
And  by  its  master's  fortune  uncorrupt. 
A  name  renowned  and  venerated  wide 
Among  the  peoples,  and  that  hath  enhanced 
Our  city's  weal. 

Lucan's  Pkarsalia,  IX. 
1884. 


ESSAYS — LETTERS.  83 

TO  MY  SISTER  "  MARY,"  MARCH  14,  1886. 

The  clouds  are  gathering,  soon  the  night  will  come, 

And  we  shall  reach  our  long-expected  home. 

But  from  the  mile  post  marked  with  "  Seventy-three  " 

I  hail  you,  sister,  where  you  follow  me ; 

Six  stages  back  is  all  the  space  between. 

For  you,  as  I,  the  best  of  life  have  seen ; 

The  most,  if  not  the  best,  for  who  can  know 

Which  is  the  best  for  mortals  here  below, 

Youth,  hope  and  fancy,  or  the  sober  close 

Of  life's  long  trials  settling  to  repose, 

Lit  up  by  gleams  reflected  from  that  shore 

Where  wait  our  loved  ones  who  have  gone  before  ? 

They  wait,  they  beckon,  why  should  we  withstand 

The  law  that  draws  us  to  that  happy  land  ? 

Then,  cheerful,  onward,  let  us  hence  pursue 

The  journey  left  that  hides  that  land  from  view. 

(Signed)     J.  P.  BRADLEY. 


ANSWER  TO  A  REQUEST  FOR  A  MOTTO. 

WASHINGTON,  19th  Sept.,  1887. 
DEAR  SIR  : 

I  know  of  no  motto  truer  or  more  to  be  studied  by 
a  young  man  than  the  following  : 

Haec  sunt  Fortunae  optima  dona : 
Sana  mens  in  corpore  sano, 
Sedulus  labor,  probitas  pura. 

The  best  gifts  of  fortune  are  these: 
Health  of  body,  a  sound  understanding, 
Pure  integrity,  industry  untiring. 

Yours  truly, 

(Signed)     JOSEPH  P.  BRADLEY. 
MR.  ELLERY  S.  AYER, 

Boston. 


84  MISCELLANEOUS   WRITINGS. 

DREAMLAND. 

I  do  not  know  whether  I  am  singular,  but  I  have 
a  dream-world  to  which  I  often  repair  in  sleep.  I  do 
not  refer  to  those  phantastic  scenes  and  incidents 
which  have  no  rational  connection  or  cause,  and  which 
often  attend  our  unquiet  slumbers,  and  leave  little 
trace  behind,  or  any  deep  impression.  My  dream- 
world is  very  different.  It  has  generally  the  same 
phantasmagoria  of  surrounding  objects  and  scenery, 
and  is  altogether  a  pleasant  and  homogeneous  system 
of  things.  The  singularity  of  it  is,  that  it  has  this 
constant  sameness  after  the  lapse  of  years.  The  prin- 
cipal scene  is  located  in  a  city,  having  a  great  resem- 
blance to  the  City  of  Newark,  -where  I  formerly  resided 
and  in  this  underworld  city  I  am  always  residing  and 
have  an  office  in  the  business  part  of  the  town,  on 
the  ground  floor,  fronting  on  the  main  street ;  but  it 
is  usually  closed  in  consequence  of  my  prolonged 
absences.  I  sometimes  go  in  to  look  over  some  old 
and  rare  books  that  I  keep  there — books  the  like  of 
which  I  never  saw  in  my  waking  moments.  One  of 
these  books  is  at  least  a  yard  in  height,  and  half  a 
yard  in  width,  and  at  least  four  inches  thick.  The 
binding  is  very  old  and  heavy,  the  corners  being 
much  frayed.  The  print  is  large  and  in  double,  and 
sometimes  treble,  columns  on  the  page.  It  is  hard  to  tell 
what  the  subject  of  it  is.  It  contains  chapters  on  law, 
and  on  chronology  and  on  philosophy  and  on  religion, 
and  I  find  some  very  curious  things  in  it,  some  of 
•which,  if  I  get  time,  I  will  relate.  There  are  other 
old  books  of  various  sizes,  some  nearly  as  large  as 
the  one  I  have  described,  and  thence  ranging  down  to 


ESSAYS— LETTERS.  85 

ordinary  quartos  and  royal  octavos.  I  have  generally 
some  anxiety  when  I  visit  the  office  to  see  whether 
any  of  the  books  have  been  stolen.  I  sometimes 
find  them  disarranged,  but  generally  put  them  in 
their  proper  places  again.  My  principal  trouble  arises 
from  the  improvements  that  are  often  going  on  in  the 
neighborhood.  They  have  been  building  a  row  of 
brick  houses  in  the  rear,  on  the  next  street,  and  the 
lots  join.  I  am  constantly  fearful  lest  the  workmen 
will  come  on  to  my  lot  and  get  into  my  back  windows 
and  carry  off  some  of  my  books,  and  then  sometimes 
when  I  am  absent,  and  one  of  my  clerks,  or  young 
men,  occupy  the  office  part  of  the  day,  other  lawyers 
come  in  and  borrow  the  books ;  and  some  forget  to 
return  them.  In  going  up  and  down  the  street,  I  meet 
many  of  my  old  acquaintances,  long  since  dead,  and 
have  many  interesting  conversations  with  them.  I 
visit  this  dreamland,  sometimes  as  often  as  once  a 
month,  sometimes  only  after  an  interval  of  a  year 
or  more,  but  I  always  find  it  the  same,  and  the  old 
books  the  same.  The  impression  of  its  reality  has 
become  so  strong  that  even  in  my  waking  moments 
I  sometimes  imagine  for  an  instant  that  I  possess 
those  old  books  somewhere,  and  do  not  recover  from 
the  hallucination  until  I  begin  to  inquire  with  myself 
where  they  are. 

WASHINGTON,  January  27, 1889. 


86  MISCELLANEOUS   WRITINGS. 


THE  MARITAL  RELATION. 

ASSOCIATE  JUSTICE  BRADLEY   IN  THE  "  NORTH  AMERICAN 
REVIEW"    FOR    DECEMBER,    1889. 


As  marriage  and  the  family  institution  constitute 
the  foundation  and  chief  corner  stone  of  civil  society, 
it  is  of  the  greatest  moment  that  the  marriage-tie 
should  never  be  dissolved  save  for  the  most  urgent 
reason.  I  cannot  assent,  however,  to  the  doctrine 
that  it  should  never  be  dissolved  at  all.  Mere  separa- 
tion, though  legalized,  would  often  be  an  inadequate 
and  unjust  remedy  to  the  injured  party,  who  would 
thus  be  subjected  to  an  enforced  celibacy.  This  might 
suit  the  notions  of  those  who  regard  celibacy  as  a 
virtue,  but  would  fail  to  approve  itself  to  those  who 
take  a  wider  and  more  charitable  view  of  human 
nature.  The  divine  law,  which  says,  "  What  God  has 
joined  together  let  not  man  put  asunder,"  immediately 
adds  an  exception,  "  save  for  the  cause  of  fornication," 
showing  what  the  law  of  nature  dictates,  that  the  case 
is  not  governed  by  any  iron  rule  of  universal  application. 
The  law,  "  Thou  shalt  not  kill,"  has  its  necessary  excep- 
tions, a  disregard  of  which  would  render  it  mischievous 
in  a  high  degree.  I  know  of  no  other  law  on  the 
subject  but  the  moral  law,  which  does  not  consist  in 
arbitrary  enactments  and  decrees,  but  is  adapted  to 
our  conditions  as  human  beings.  This  is  so,  whether 
it  is  conceived  of  as  the  will  of  an  all-wise  Creator,  or 
as  the  voice  of  humanity,  speaking  from  its  experience, 
its  necessities  and  its  higher  instincts.  And  that  law 
surely  does  not  demand  that  the  injured  party  to  the 


ESSAYS— LETTERS.  87 

marriage  vows  be  forever  tied  to  one  who  disregards 
and  violates  every  obligation  which  it  imposes ;  to 
one  with  whom  it  is  impossible  to  cohabit ;  to  one 
whose  touch  is  contamination.  Nor  does  it  demand 
that  such  injured  party,  if  legally  free,  should  be 
forever  debarred  from  forming  other  ties  through 
which  the  lost  hopes  of  happiness  for  life  may 
be  restored.  It  is  not  reason,  and  it  cannot  be 
law,  divine  or  moral,  that  unfaithfulness,  or  wilful 
and  obstinate  desertion,  or  persistent  cruelty  of 
the  stronger  party,  should  afford  no  grounds  for 
relief.  The  most  rigid  creeds,  to  the  contrary,  have 
found  methods  of  dispensation  from  the  theoretical  rule. 
And  if  no  redress  be  legalized,  the  law  itself  will  be  set 
at  defiance,  and  greater  injury  to  soul  and  body  will 
result  from  clandestine  methods  of  relief.  Yet  so  desir- 
able is  the  indissolubility  of  marriage  as  an  institution, 
so  necessary  is  it  to  the  happiness  of  families  and  the 
good  of  society,  so  pitiable  the  consequences  that  often 
flow  from  a  dissolution,  that  every  discouragement 
to  such  a  remedy  should  be  interposed.  Not  only 
should  the  Judge  take  every  care  to  see  that  just 
cause  exists,  but  that  no  other  remedy  is  possible. 
No  jugglery  or  privacy  should  be  tolerated,  however 
high  in  station  the  parties  may  be.  Investigation  of 
the  truth  should  be  thorough  and  open,  and  should 
be  a  matter  of  public  concern,  participated  in  by  the 
public  representative  of  the  law.  It  should  be  regarded 
as  a  quasi-criminal  process,  if  not  accompanied  with 
criminal  sanctions.  Only  serious  and  even  severe 
methods  of  administering  the  law  will  be  sufficient  to 
repress  the  growing  tendency  of  discontented  parties 
to  rush  into  divorce  courts, 


88  MISCELLANEOUS    WRITINGS. 


RUTGERS'  ALUMNI  DINNER. 

LETTER  OF  "REGRET"  SENT  BY  JOSEPH  P.  BRADLEY,  DATED 
WASHINGTON,  FEBRUARY  26,  1891. 


L.  LAFLIN  KELLOGG,  Esq., 

DEAR  SIR  :— I  am  sorry  that  I  cannot  be  present 
to-morrow  evening  to  join  our  alumni  at  their  annual 
dinner,  and  to  answer  personally  to  the  toast  of  "  The 
Bench."  I  can  only  say  in  this  circumscribed  way, 
that  "  The  Bench  "  of  the  forum  is  quite  as  uneasy 
and  anxious  a  seat  as  "  The  Bench  "  of  the  country 
schoolhouse,  or  the  old  stone  college,  -without  the  oppor- 
tunity of  cutting  your  name  on  it  with  a  jackknife. 
That  must  be  done  with  a  different  weapon.  How 
deeply  we  all  sympathize  with  each  other  on  looking 
back,  with  a  sigh,  to  those  happy  days  when  the  only 
care  was  to  con  a  lesson  well,  or  to  make  a  creditable 
recitation  ;  and  yet,  as  the  boy  is  father  to  the  man, 
so  the  college  is  mother— alma  mater— to  every  branch 
of  professional  life,  looked  back  to,  looked  up  to  as 
the  source  of  all  that  is  good  or  excellent  in  years  of 
riper  development.  But  the  standards  of  attainment 
and  approbation,  how  different !  It  is  not  now  a 
question  of  Greek  roots,  or  mathematical  abstractions, 
with  anxious  desire  to  win  a  professor's  smile  ;  it  is  a 
question  of  honest  duty  performed  in  the  hard  strug- 
gles of  life  ;  of  wisdom  daily  acquired  ;  of  "  increasing 
in  favor  with  God  and  man,"  each  of  us  squaring  his 
life,  or  trying  to  do  so,  by  some  standard  appropriate 
to  his  calling  ;  the  merchant,  by  probity  and  diligence 
in  business;  the  physician,  by  the  most  advanced 


ESSAYS— LETTERS.  89 

analysis  of  human  ills  and  their  remedies  ;  the  divine, 
by  the  lofty  ideals  of  sacred  literature  and  the  moral 
manifestations  of  modern  society;  the  lawyer,  by 
studying  the  fountains  of  jurisprudence,  as  applied  to 
the  phases  of  every-day  business ;  the  jurist,  by  the 
lights  of  truth  and  justice,  from  whatever  source 
derived,  and  all  with  a  watchful  world  for  spectators 
and  audience  and  judges. 

Before  us,  on  the  Bench,  stands  the  awful  Goddess 
of  Justice  and  Law,  watching  every  word  and  weigh* 
ing  every  decision ;  if  we  make  a  mistake,  sending  a 
chill  through  every  vein  ;  if  we  decide  right,  rewarding 
us  only  with  a  kindly  nod  of  approval,  but  leaving  us 
to  incur  small  thanks,  and  often  deep  curses,  from 
those  whose  cases  we  are  called  upon  to  determine. 
And,  how  fearful  is  the  abiding  consciousness,  that, 
however  just  our  decisions  may  be,  wretchedness, 
poverty,  ruin  on  one  side  or  the  other,  may  hang  on 
our  words.  Rejoice,  fellow  Alumni,  for  your  freedom 
from  such  trials.  Your  pursuits  do  not  necessarily 
involve,  as  our  functions  often  do,  the  ruin  of  fortunes 
and  the  destruction  of  all  hope  in  the  world. 

So  the  Bench  greets  you  with  the  wish  that  you 
may  never  have  occasion  to  approach  it,  except  as 
idle  and  disinterested  spectators,  or  with  an  invitation 
to  another  "  Alumni  "  dinner. 

Let  me  give  you  something  new  and  fresh  :  "  Sol 
ustitiae  et  occidentem  illustra." 


90  MISCELLANEOUS   WRITINGS. 

EQUALITY. 

"We  hold  it  to  be  self-evident  that  all  men  are 
created  equal."  This  is  our  creed  as  a  nation. 
But  the  question  of  importance  is,  in  what  respect 
equal  ?  Not  equal  in  mind,  for  this  experience  teaches 
us  to  be  untrue.  Not  equal  in  compared  vigor,  for 
this  is  contrary  also  to  experience.  Not  equal  in  the 
dispensations  of  Providence,  nor  equally  favored  by 
fortune.  In  fine,  there  is  scarcely  one  thing  in  which 
we  may  be  said  to  be  equal.  In  what  sense  is  it,  then, 
that  we  are  declared  to  be  equal  by  the  Declaration  of 
Independence  ?  The  answer  must  be,  politically  equal. 
But  again,  wherein  does  this  political  equality  consist  ? 
Does  it  consist  in  the  distribution  of  wealth,  and  a 
common  possession  of  the  comforts  and  elegancies  of 
life  ?  Certainly  not ;  or  else  the  great  apostles  of 
our  liberty  ;  our  Washington,  our  Franklin,  our  Adams, 
our  Jefferson,  were  traitors  to  their  creed,  and  selfishly 
dismissed  from  their  intentions  the  design  of  realizing 
the  great  doctrines  which  they  so  solemnly  avowed. 
Besides,  it  cannot  be  in  this  sense  that  they  meant ; 
for  in  this  sense  it  would  be  nonsense  and  vanity. 
The  luxuries  of  life  do  not  consist  merely  in  dollars 
and  cents.  These,  it  is  true,  might  be  distributed 
with  a  comparative  ease  amongst  the  expectant  throng. 
But  there  are  your  music,  your  paintings,  your  other 
trophies  of  art;  there  are  your  stores  of  literature, 
your  black  letter,  your  dead  letter,  your  antiquities, 
your  offsprings  of  the  muse,  there  are  your  refined 
emotions,  your  generous  feeling,  your  whole  aspira- 
tions—all these,  and  ten  thousand  more  are  real,  bona- 
fide  luxuries,  that  not  only  occupy,  but  enchant 


ESSAYS— LETTERS.  91 

hundreds  and  thousands  who  are  susceptible  of  what 
they  are  calculated  to  inspire.  Now,  if  one  class  of 
luxuries  may  be  possessed  in  common,  there  is  no 
reason  why  every  class  may  not  be — as,  if  we  are  all 
created  equal,  it  were  unjust  that  any  should  have  at 
their  command  sources  of  delight  which  are  denied  to 
the  rest.  But  there  are  many  species  of  luxury,  those 
in  particular  which  I  enumerated,  which  the  great 
mass  of  mankind  are  incapable  of  enjoying,  and  of 
which  they  ever  would  be  incapable,  how  equably 
soever  the  grosser  attendants  of  prosperity  might  be 
distributed.  Hence  an  equalization  of  wealth  would 
not  be  followed  by  an  equal  power  of  enjoying  life 
(which  is  the  object  of  wealth),  and  the  very  object 
proposed  would  never  be  attained.  Further,  a  dull 
equalization  of  wealth  would  smother  enterprise  ^ 
produce  listlessness,  and  induce  a  man,  instead  of 
aiming  to  support  himself  by  his  own  exertions, 
to  depend  for  his  support  upon  the  rest,  conscious 
always  that  however  indolent  and  inactive  him- 
self might  be,  he  would  still  share  an  equal 
portion  with  his  fellows  —  with  even  the  most 
industrious  of  them;  for  any  attempt  to  punish 
inactivity  by  subjecting  it  to  want,  would  be  an 
admission  of  the  principle  that  industry  should  be 
rewarded,  and  this  is  the  great  principle  that  supports 
the  present  machinery  of  society.  Leaving  then  the 
notion  that  community  of  wealth  is  meant  by  the 
equality  alluded  to  in  the  Declaration,  what  else,  may 
we  ask,  can  it  mean  ?  Does  it  mean  social  eqality  ? 
Such  a  state  would  make  all  the  classes  (I  do  not  say 
orders)  of  society  commingle  their  intercourse ;  would 
introduce  the  cobbler  into  the  most  elegant  drawing 


92  MISCELLANEOUS    WRITINGS. 

room  to  take  a  cup  of  tea  with  the  gayest  belle  of  the 
town,  or  else,  perhaps,  to  debate  with  grave  Senators 
on  the  affairs  of  State.  Could  this  have  been  meant  ? 
Certainly  not.  This  is  the  least  possible  of  all  mean 
ings  that  could  be  attached  to  the  term.  Men  will 
choose  their  own  company  in  whatever  state  of  society 
3'ou  may  choose  to  place  them.  This  is  the  last 
vestige  of  liberty  with  which  they  are  willing  to  part, 
and  any  state  of  society  which  forbids  a  man  this 
privilege,  I  shall  neither  contend  for  nor  against.  In 
what,  then,  can  this  political  equality  consist  ?  Does 
it  consist  in  each  man  having  an  equal  voice  in  the 
civil  government  of  his  country  ?  This  is  what  I  con- 
ceive it  to  be.  But  this  is  exercised  originally,  and 
only  so.  After  the  elements  of  society  are  once  organ- 
ized in  the  least,  after  some  one  has  exercised  the 
privilege  (which  belongs  equally  to  all)  of  nominating 
a  chairman  or  a  president  in  any  meeting  of  the 
citizens— after  that  moment— after  the  choice  of  that 
chairman  has  been  approved,  much  of  the  authority, 
which  till  then  was  equally  exercised  by  all,  is  -now 
confided  to  him.  If  this  meeting  adopt  a  constitution 
for  the  regulation  of  their  conduct,  a  constitution 
which  any  soul  of  them  had  the  privilege  of  proposing, 
then  and  thereafter  that  constitution  is  charged  with 
much  of  the  authority  which,  till  then,  had  existed  only 
in  the  people.  Thus,  by  public  decrees  and  constitutions, 
the  people  deposit  a  certain  portion  of  their  own 
power  with  particular  individuals,  and  these  individuals 
have,  then,  a  right  which  the  multitude  has  not,  of 
making  laws  and  administering  government.  Rights, 
it  will  be  observed,  are  delegated  to  them.  They  are 
not  made  a  privileged  class.  We  have  no  orders  of 


ESSAYS — LETTERS.  93 

society.  No  privileged  classes.  We  have  a  plenty  of 
classes,  and  this  class  is  one  of  them.  It  is  made  their 
business  and  their  duty  (they  might  have  declined  if 
they  pleased)  to  attend  to  public  matters.  It  all 
arises  from  the  necessity  of  the  division  of  labor.  All 
cannot  rule,  nor  can  all  be  ruled.  All  cannot  plow, 
nor  can  all  sow,  nor  reap.  No  more  can  all  neglect 
such  employments,  else  the  race  would  become  extinct. 
Each  has  his  business  to  perform,  his  part  to  act.  It 
is  a  duty  he  owes  to  the  rest  as  well  as  to  himself. 
In  this  way,  all  are  equally  dependent,  equally  necessary, 
to  the  body  politic.  Hence,  all  have  an  equal  right  to 
govern  the  whole  where  that  right  has  not  been  pre- 
viously conveyed  away.  This  is  Political  Eqality. 


POLITICAL  ECONOMY. 

Prof.  Perry  defines  Political  Economy  to  be  the 
Science  of  Exchanges,  or,  in  other  words,  the  Science 
of  Value.  This  does  not  accord  with  my  notion  of 
the  science.  Exchange  and  value  have  much  to  do 
with  political  economy,  and  play  an  important  part ; 
but  it  seems  to  me  to  be  rather  the  science  of  pro- 
ducing1 National  Wealth ;  that  is  to  say — public  and 
private  resources. 

The  questions  which  political  economy  professes  to 
answer,  or  ought  to  answer,  are  such  as  these  :  What 
are  the  best  methods  of  supplying  a  given  society  with 
all  its  material  needs  ?  Under  the  circumstances,  is 
agriculture  essential  ?  If  essential,  how  can  it  be 


94  MISCELLANEOUS   WRITINGS. 

encouraged  ?  May  it  be  encouraged  at  the  expense  of 
manufactures  ?  Or  is  it  better  to  leave  both  to  the 
natural  laws  that  govern  action  ?  Will  the  erection 
of  railways  be  advantageous  ?  Or  may  the  capital 
expended  on  them  be  laid  out  to  better  advantage  ? 
If  the  means  of  intercourse  and  transportation  are 
sufficiently  subserved  by  water  in  the  particular  case, 
and  if  capital  expended  on  railways  would  be  wasted, 
would  the  employment  of  such  surplus  capital  in  the 
erection  of  steam  engines  and  machinery  be  beneficial  so 
as  to  multiply  the  forces  of  production  ?  Or,  would  it  be 
better  to  invest  it  in  commerce  with  foreign  countries  ? 
And,  if  the  same  amount  of  wealth  could  be  created 
by  each  course,  which  would  be  the  preferable  in  the 
long  run,  as  affecting  the  future  well-being  of  the 
State  ?  Is  the  encouragement  of  the  fine  arts  calcu- 
lated to  promote  the  physical  or  material  prosperity 
of  society  ? 

In  short,  we  expect  political  economy  to  tell  us  the 
effect  of  all  measures  and  all  pursuits  on  the  general 
supply  and  distribution  of  material  resources,  and 
consequently,  upon  the  national  well-being,  so  far  as 
material  resources  are  concerned. 

To  produce  national  valor,  military  science  is  to  be 
consulted ;  national  virtue,  moral  science ;  national 
intelligence,  educational  science ;  but  the  secret  of 
national  wealth  must  be  sought  in  the  science  of 
political  economy.  The  study  of  all  these  sciences 
may  be  necessary  to  understand  the  entire  necessities 
and  well-being  of  a  State  ;  for  intellectual  and  moral 
development  and  military  power  may  be  as  essential 
as  wealth  and  resources  to  the  national  prosperity 
and  glory,  and  each  of  these  aspects  of  social  great- 


ESSAYS—LETTERS.  95 

ness  may  be  but  necessary  complements  of  the  others 
all  being  required  to  produce  that  symmetrical  com- 
pleteness which  alone  can  produce  true  national 
aggrandizement. 

Professor  Perry,  adopts  Frederick  Bastiat's  defi- 
nition of  value  as  the  relation  between  two  services 
exchanged.  He  also  dilates  on  the  excellency  of  the 
word  "  service  "  for  explaining  the  principles  of  politi. 
cal  economy.  But  I  think  he  uses  the  word  service 
ambiguously,  namely,  both  for  the  efforts  or  labor  by 
which  one  performs  a  service,  and  for  the  utility  which 
it  subserves  to  him  who  receives  it.  Thus,  we  say  :  A 
rendered  service  to  B,  which  was  of  great  service  to 
him ;  /.  e.,  A  performed  a  labor  which  was  of  great 
utility  to  B.  These  ideas  are  very  distinct  the  one 
from  the  other.  The  same  labor  may  be  of  great  utility 
to-day  and  no  utility  to-morrow.  Now,  the  value  to 
me  is  the  utility  to  me. 

Professor  Perry  defines  utility  to  be  the  capacity 
which  any  thing  or  any  service  has  to  gratify  any 
human  desire. 


FENIANISM. 

Whilst  equal  representation  and  industrial  privileges 
are  to  be  sought  in  every  legal  way,  political  separa- 
tion or  independency  for  Ireland  is  a  delusive  dream. 
Effort  in  that  direction  will  only  injure  the  Irish 
cause.  For,  think :  the  British  Empire  is  the  most 
powerful  in  existence.  It  embraces  the  earth,  and 
all  its  power  would  be  put  forth  to  prevent  an 
independent  kingdom  so  near  its  heart  as  Ireland.  It 


96  MISCELLANEOUS    WRITINGS. 

is  as  if  Lombardy  (or  Cisalpine  Gaul)  had  attempted 
independence  in  the  height  of  the  Roman  power. 
When  the  British  Empire  goes  into  disintegration 
(which  it  will  at  some  future  time)  Ireland  may  be 
independent.  But  that  catastrophe  is  not  to  be 
expected,  not  even  wished  for,  now.  The  centers  of 
civilization  are  not  so  distributed,  nor  are  its  forms 
so  perfect  as  to  make  it  desirable.  America,  perhaps, 
might  be  the  gainer,  for  she  is  now  subservient  to 
the  financial  supremacy  of  England.  But  the  world 
would  be  an  immense  looser,  and  in  the  general  loss, 
even  America  would  participate.  Ireland  could  not 
anticipate  much  benefit  from  such  a  cataclasm.  She 
would  be  deeply  involved  in  it. 

But  at  all  events,  whoever  seeks  to  make  Ireland 
independent  must  aim  at  nothing  short  of  the  destruc- 
tion of  the  British  Empire,  whatever  other  conse- 
quences may  ensue.  That  is  the  necessary  objective. 


THE    POLITICAL    EXPRESSIONS 

OF 

JOSEPH  P.  BRADLEY, 

COMPILED  FROM 

SPEECHES   AND    ARTICLES    WRITTEN    BY    HIM 

Published  in  the  Newark  Daily  Advertiser  at 
different  periods  during  186O-1862. 


MR.  BRADLEY'S  RECORD. 

As  the  position  and  views  of  J.  P.  Bradley,  Esq., 
on  public  matters  in  time  past,  are  a  matter  of  some 
interest  at  present,  we  have  taken  the  pains  to  gather 
from  the  columns  of  the  Advertiser  various  reported 
speeches  made  by  him  in  1860  and  1861,  and  articles 
from  his  pen. 

These  pieces  indicate  very  clearly  the  views  which 
Mr.  Bradley  is  well  known  by  his  friends  to  have 
entertained  and  freely  expressed.  That  his  views  on 
the  Slavery  question  and  compromise  with  the  South, 
previous  to  the  breaking  out  of  the  Rebellion,  were 
very  conservative,  is  well  understood  wherever  he  is 
personally  known.  He  took  a  deep  interest  in  the 
efforts  to  bring  about  a  compromise  without  the 
effusion  of  blood,  in  December,  1860,  and  January  and 
February,  1861.  Amongst  other  things,  he  drew  up 
two  articles  amendatory  of  the  Constitution,  and 
pressed  them  upon  the  attention  of  the  famous  Com- 
mittee of  33,  appointed  by  Speaker  Pennington,  under 


8  MISCELLANEOUS   WRITINGS. 

a  resolution  of  the  House  of  Representatives.  At  one 
time  the  indications  were  quite  favorable  for  the  success 
of  these  articles  in  committee — a  number  of  leading 
Republicans  having  been  induced  to  advocate  them, 
and  it  being  well  understood  that  they  would  have 
been  entirely  satisfactory  to  all  the  Border  States. 

The  articles  referred  to,  with  a  brief  introduction, 
were  published  in  the  Advertiser  December  3,  1860, 
the  day  of  the  opening  of  Congress.  They  are  as 
follows : 

COMPROMISE. 

No  compromise  is  good  for  anything  unless  founded 
on  justice.  The  fourth  article  of  the  Constitution  of 
the  United  States  requires  and  mutually  pledges,  that 
fugitives  from  justice  or  service,  from  one  State,  shall, 
on  demand,  be  delivered  up  by  another  where  they  are 
found.  Justice  requires  that  if  this  be  not  done,  satis- 
faction should  be  made.  Justice  also  requires  that  the 
citizens  of  the  South,  as  well  as  the  North,  should 
have  a  fair  opportunity  to  emigrate,  with  their  prop- 
erty, to  the  territories  which  have  been  purchased  with 
the  common  treasure.  But  as  slave  labor  and  free 
labor  do  not  prosper  together,  expediency  demands  a 
division  of  those  territories  between  the  parties.  No 
business  man  can  say  that  these  are  not  the  dictates 
of  justice,  as  between  the  parties.  The  following 
terms  of  compromise  are  based  on  these  ideas,  and  we 
suggest  them  for  consideration  : 

[Amendments  to  the  Constitution  of  the  United  States,  to  be 
proposed  by  Congress  to  the  Legislatures  of  the  several  States  for 
adoption ;  requiring  a  two-third  vote  in  Congress  and  a  ratification 
by  three-fourths  of  the  several  States.] 


POLITICAL    EXPRESSIONS.  99 

ARTICLE  XHI. 

Slavery  or  involuntary  servitude,  other  than  for  the  punishment 
of  crime,  shall  not  be  permitted  in  any  of  the  Territories  of  the  United 
States  north  of  thirty-six  degrees  and  thirty  minutes  north  latitude ;  and 
shall  not  be  prohibited  in  any  of  the  said  Territories  south  of  that  par- 
allel ;  provided,  however,  that  any  State  which  may  be  formed  out  of  any 
portion  of  said  territory,  shall  have  full  power  in  the  premises  within 
its  own  bounds,  after  the  lapse  of  twenty  years  from  its  admission  into 
the  Union,  and  not  before ;  and  provided,  also,  that  any  person 
escaping  into  any  such  State  or  Territory,  from  whom  labor  or  service 
is  lawfully  claimed,  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due  according  to  the  fourth  article 
of  the  Constitution,  and  any  laws  passed  in  pursuance  thereof,  as 
heretofore. 

ARTICLE  XIV. 

If  a  person  held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  shall  escape  into  another,  shall,  in  due  form,  be  claimed  and 
identified  by  the  party  to  whom  such  service  or  labor  may  be  due,  in 
accordance  with  the  fourth  article  of  the  Constitution,  and  any  laws 
passed  in  pursuance  thereof ;  and  by  reason  of  rescue  or  other  forcible 
interference  with  the  due  course  of  law,  shall  not  be  delivered  up  on 
such  claim  according  to  the  said  fourth  article,  the  said  claimant  shall 
be  indemnified,  therefore,  by  the  county  in  which  said  fugitive  shall  be 
so  claimed,  which  indemnity  may  be  sued  for  and  recovered  in  any 
Courts  of  the  United  States. 


The  next  article  on  the  subject  from  Mr.  B.'s  pen 
was  published  December  15,  1860,  and  was  embodied 
in  an  editorial  in  the  Advertiser  of  that  date.  It  was 
as  follows : 

"  If  no  better  remedy  presents  itself,  let  amendments 
to  the  Constitution  be  proposed  by  Congress  and 
ratified  by  three-fourths  of  the  States,  completely 
indemnifying  holders  of  fugitive  slaves,  and  giving  the 
slaveholding  States  a  fair  division  of  the  public  terri- 
tory. This  would  obviate  the  constitutional  objections 
to  the  Missouri  compromise.  The  territories  were 


100  MISCELLANEOUS   WRITINGS. 

purchased  by  the  common  treasure,  and  it  is  just 
that  the  South  as  \vell  a&  the  North  should  enjoy 
the  benefit  of  them.  But  free  labor  and  slave  labor 
cannot  prosper  together.  Therefore  it  is  fitting  and 
expedient  that  these  territories  should  be  fairly  divided. 
This  would  designate  to  each  party  their  proper  rights, 
and  would  prevent  any  unseemly  collisions.  Let  this 
division  be  made  fairly,  and  let  it  be  made  for  all  time. 
This  is  just  and  wise.  It  cannot  fail  to  meet  the 
approbation  of  the  requisite  number  of  States.  The 
people  of  the  North  are  not  unfriendly  to  those  of 
the  South.  The  charge  to  the  contrary  is  a  slander. 
Noisy  and  blustering  persons,  both  at  the  North  and 
at  the  South,  utter  many  foolish  and  crazy  speeches ; 
but  the  mass  of  the  people  have  no  sympathy  with 
them.  This  we  know  to  be  so  at  the  North,  and  we 
hope  it  is  so  at  the  South.  We  are  sure  it  would  be  so 
if  the  people  in  that  section  clearly  understood  the 
true  feeling  of  the  North  towards  them. 

"  In  such  an  exigency  as  the  present  no  party  feel- 
ing should  be  permitted  to  intermingle.  But  are  there 
any  reasons  why  the  Republican  party  should  not 
co-operate  in  such  a  settlement  of  the  controversy  as 
that  which  is  indicated  ? 

"  The  Republican  party  (unjustly,  we  know)  is 
deemed  a  sectional  one ;  and  is  held  responsible  for 
arousing  a  strong  sectional  feeling — a  feeling  of 
animosity  to  institutions  on  one  hand,  and  jealousy 
on  the  other.  A  disruption  of  the  Union  will  be 
unjustly  laid  to  it.  But  it  will,  nevertheless,  be  laid  to 
it.  It  is,  therefore,  as  much  the  interest  of  the  Repub- 
lican as  of  any  other  party  to  co-operate  in  such 
measures  as  may  lead  to  an  honorable  and  just  settle- 
ment of  existing  difficulties. 


POLITICAL   EXPRESSIONS.  101 

"  But  rightly  viewed  the  healing  measures  proposed 
are  in  strict  conformity  with  the  Tfetfrs  Je,nd  principles 
of  that  party.  This  will  appear,  by  attention,  to  the 
following  propositions  :  j '  '  '•'•'•«'•  '•>  >''"• 

"  The  Compromise  of  1850  resulted  in  the  admis- 
sion of  California  as  a  free  State,  though  situated  in 
part  south  of  the  Missouri  Compromise  line  ;  and  in 
the  enactment  of  the  Fugitive  Slave  law,  leaving  the 
Missouri  Compromise  line  in  all  other  respects  undis- 
turbed. It  was  supposed  that  this  settlement  would 
be  satisfactory  to  the  country,  and  forever  quiet 
agitation. 

"  But  the  rapid  settlement  of  Kansas,  and  its 
immediate  proximity  to  the  slave  property  of  Missouri, 
opened  a  door  for  renewed  and  angry  controversy. 
The  South  sought  to  occupy  that  Territory,  as  an 
off-set  to  California.  To  effect  this  object,  the  Kansas 
and  Nebraska  act  was  promoted  by  Mr.  Douglas  and 
passed  by  Congress  in  1854,  by  which  the  Missouri 
Compromise  was  repealed.  The  decision  in  the  Dred 
Scott  case  was  used  for  the  furtherance  of  the  same 
purpose. 

"  At  these  manifestations  of  the  rapid  strides  made 
by  the  slave  power,  the  North  rose  in  the  shape  and 
form  of  the  Republican  party.  Its  special  mission  was 
to  drive  back  the  tide  of  slavery  within  its  proper 
limits— not  by  waging  war  on  the  South  or  by  ignor- 
ing the  obligations  of  the  Constitution— but  by  rescuing 
the  territories  of  the  Union  from  the  unjust  grab  of 
the  slave  power. 

"If,  now,  the  Republican  party  vigorously  sup- 
port a  Constitutional  provision  by  which  the  nation 
is  brought  back  to  the  Missouri  Compromise,  can  it  be 


102  MISCELLANEOUS   WRITINGS. 

justly  accused  of  being  false  to  the  principle  of  its 
orgaiowation.  ?  *  QT"I  I  tlie  contrary,  no  course  could  be 
more  compatible  with  it.  No  act  could  more  fully 
coiisUniinate  the  mission  of  the  Republican  party. 

"  This  object  attained,  that  party  has  still  enough 
on  its  hands  to  do.  To  it  naturally  falls  the  cham- 
pionship of  the  industrial  interests  of  the  country.  In 
the  pursuit  of  this  object,  which  is  purely  a  national 
one,  the  party  will  receive  the  co-operation  of  the  con- 
servative party  of  the  South,  and  the  two  will  form 
one  great  national  party  of  impregnable  strength. 

"As  to  the  other  point,  the  indemnity  of  owners 
of  fugitive  slaves  rescued  or  withheld,  it  is  a  matter 
of  simple  justice.  Each  State  rests  under  a  clear  con- 
stitutional obligation  to  restore  fugitive  slaves  when 
demanded.  If  they  fail  to  do  so,  it  is  clear  that  the 
owner  should  be  indemnified,  and  the  delinquent  parties 
made  to  bear  the  loss. 

"  Thus  on  party,  no  less  than  on  patriotic  grounds, 
every  consideration  of  right  and  expediency  leads  us  to 
the  same  conclusion.  We  assure  our  Representatives 
and  the  country  that  they  will  have  the  voice  of  New 
Jersey  in  favor  of  every  honorable  effort  which  can  be 
devised  for  preserving  the  national  existence." 


[Published  December  28.  I860.] 
PARTY  OR  COUNTRY? 

St.  Paul  knew  that  meat  which  had  been  conse- 
crated to  idols  was  just  as  harmless  as  that  which 
had  never  undergone  such  an  absurd  formula.  But 
many  uninformed  Christians  had  not  that  degree  of 


POLITICAL   EXPRESSIONS.  103 

knowledge ;  and  if  they  saw  him  eat  it,  they  would 
either  be  scandalized,  or  else  infer  that  a  religious 
respect  for  the  idol  was  not  inconsistent  with  the 
Christian  faith.  "Wherefore,"  said  the  Apostle,  "if 
meat  make  my  brother  to  offend,  I  will  eat  no  meat 
while  the  world  standeth."  This  is  a  noble  instance 
of  that  charity  which  our  divine  religion  inculcates. 

The  Republican  party  has  succeeded  in  electing  its 
candidate  for  the  Presidency.  It  says  that  it  means 
nothing  but  fealty  to  the  Constitution,  and  intends  no 
invasion  of  the  rights  of  the  South.  This  is  well.  But 
the  South  believes  otherwise.  The  South  may  be 
uninformed,  or  wrongly  informed,  on  the  subject. 
But,  nevertheless,  it  is  a  fact  that  a  great  deal  o 
exasperation  exists  ;  and  exasperation  has  led  to  acts 
and  declarations  which  are  leading  to  the  disruption 
of  the  Republic. 

In  all  this  the  South  may  be  very  wrong— undoubt- 
edly is  very  wrong.  The  South,  especially  South 
Carolina,  has  acted  very  unjustifiably,  not  to  say 
treasonably.  There  is  no  justification  for  secession— 
which  is  simply  rebellion.  And  if  the  South  was  going 
to  injure  itself  alone,  it  might,  perhaps,  be  a  just  retri- 
bution to  let  it  separate  from  the  North.  But  it  will 
not  injure  itself  alone.  In  breaking  the  ties  that  con- 
nect us  together,  the  South  would  bring  ruin  on  the 
common  country.  The  fatal  act  would  bring  disgrace 
on  free  institutions  ;  it  would  prove  what  the  advocates 
of  despotism  are  anxious  to  prove,  the  incapacity  of 
mankind  for  self-government ;  it  would  destroy  the 
prestige  of  this  nation,  and  all  the  associations  dear 
to  freedom,  which  are  connected  with  it ;  and,  in  this 
way,  independent  of  any  consequences  to  our  material 


104  MISCELLANEOUS    WRITINGS. 

interests,  it  would  involve  ruinous  consequences  to  the 
whole  American  community,  and  to  the  cause  of  civil 
liberty  throughout  the  world. 

Of  this  there  can  be  no  doubt.  Vain  is  the  hope 
of  re-establishing  a  portion  of  the  shattered  fragments 
of  a  divided  country  into  a  new  government  of  the 
North,  to  be  based  on  firmer  foundations  and  cemented 
together  with  a  more  fervent  loyalty  than  the  present 
government  has  enjoyed.  Those  who  hold  out  this 
hope  are  deceiving  us.  They  are  either  self-deceived  or 
they  are  inflamed  with  personal  ambition— animated 
by  that  bad  spirit  which  had  rather  rule  in  hell  than 
serve  in  heaven. 

The  choice  is  before  us,  DISUNION,  with  probable 
civil  war  ;  or  CONCESSION  and  peace.  But  will  conces- 
sion bring  peace  ?  and  can  peace  be  secured  by  honor- 
ble  concession  ?  Of  this,  not  the  slightest  doubt  exists. 
All  the  South  asks  is  a  guaranty  that  the  victorious 
North  will  not  trample  on  their  rights.  Give  them,  in 
the  first  place,  substantial  security  that  their  fugitive 
slaves  shall,  if  demanded,  be  returned ;  or  that  they 
shall  receive  the  value  of  them  if  rescued  out  of  their 
hands.  This  is  a  just  demand.  They  have  a  right  to 
ask  it.  They  do  not  now  practically  receive  the  benefit 
of  that  article  of  the  Constitution  which  requires  their 
fugitive  slaves  to  be  delivered  up.  In  attempting  to 
secure  the  benefit  of  it  they  have  to  run  the  risk  of 
being  mobbed,  or  of  being  delayed  by  expensive  suits 
instituted  under  personal  liberty  laws,  habeas  corpuses, 
and  other  machinery  of  that  kind.  Let  us  do  them 
justice  in  this  respect.  Let  us  fairly  comply  with  our 
constitutional  duties,  and  treat  the  South  like  brethren, 
not  like  enemies.  It  is  all  they  ask  us  to  do.  That  is, 
that  it  is  all  that  the  great  majority  ask  us  to  do. 


POLITICAL   EXPRESSIONS.  105 

In  the  next  place,  they  ask  us  to  secure  to  them  a 
fair  proportion  of  the  public  domain,  to  which  they 
may  emigrate  with  the  same  freedom  from  molestation 
which  we  enjoy  in  emigrating  to  the  Northwestern 
lands.  This  is  also  just.  The  public  lands  are  the  prop- 
erty of  the  whole  nation.  It  is  not  fair  in  us  to  grasp 
them  all.  They  would  be  satisfied  with  the  line  of 
thirty-six  degrees  and  thirty  minutes  as  a  line  of 
division.  New  Mexico  and  Arizona  are  the  only  Terri- 
tories south  of  that  line.  It  was  the  line  with  which 
the  nation  was  satisfied  for  a  generation.  Why  not 
re-adopt  it  ? 

But  that  would  be  against  the  principles  of  our 
party !  Is  fealty  to  party  to  stand  before  fealty  to 
the  country  ?  Is  a  divided  country,  torn  by  civil  dis- 
sensions, to  be  preferred  (for  it  certainly  will  come)  to 
a  generous  concession  of  some  rigid  party  dogma  ? 
Then  I  am  no  party  man.  Then  I  repudiate  party. 

But  it  is  not  so.  The  Republican  party  can 
re-establish  the  Missouri  line  with  perfect  honor— and 
without  the  sacrifice  of  a  principle.  They  would 
thereby  secure  to  free  labor  three-fourths  of  the  public 
territory,  all  of  which,  by  the  highest  judicial  authority 
of  the  nation,  is  now  declared  to  be  open  to  slavery 
equally  as  to  free  emigration. 

Shall  we  say  that  the  Court  decided  wrong  ?  That 
may  be.  All  Courts  are  liable  to  error.  But  peaceful 
and  judicial  decision,  under  a  government  of  law,  is 
far  better  than  an  appeal  to  arms.  At  all  events,  such 
is  the  decision  ;  and  the  constitutional  mode  of  correct- 
ing it  is  not  by  disregarding  it,  but  by  amending  the 
Constitution  upon  which  the  decision  was  made. 

FELLOW  REPUBLICANS  !  the  issue  is  in  our  hands. 
Some  of  our  number  desire  a  disruption  of  the  Union 


106  MISCELLANEOUS    WRITINGS. 

for  the  very  purpose  of  erecting  a  Northern  Republic. 
Shall  we  be  led  by  them  invto  the  yawning  gulf  which 
lies  at  our  feet?  They  will  counsel  us  against  all 
concession.  I  regard  them  but  little  better  than  the 
rebels  of  the  South.  Our  ambitious  politicians  are 
bent  on  ruining  us.  Let  the  people  rise  in  their  might 
and  speak  a  voice  for  Union  and  the  country  that  will 
make  politicians  listen  and  tremble. 

They  say,  "  Who's  afraid  ?  I  will  tell  you.  Fools 
and  madmen  are  not  afraid.  But  those  who  foresee 
the  evils  that  are  to  come — they  are  afraid.  They  fear 
for  their  country,  and  for  the  fate  of  civil  liberty  in 
the  world. 


[Published  February  2O,  1861.] 
BACKBONE. 

Some  papers  and  speakers  are  constantly  talking 
of  backbone.  "  Don't  back  down  from  your  principles," 
is  their  motto.  It  is  well  to  understand  what  this 
means. 

There  are  three  distinct  parties  at  the  North :  First- 
Democratic  politicians,  who  seek  every  opportunity  to 
turn  the  public  crisis  to  their  particular  party  advan- 
tage, by  representing  that  the  Republican  party  is  an 
association  of  enemies  to  the  Constitution  and  country. 
Their  constant  effort  is  to  place  the  Republicans  in 
the  wrong.  They  profess  to  be  friends  of  Southern 
rights,  and  eagerly  put  forward  such  plans  of  com- 
promise and  conciliation  as  they  know  will  be  distaste- 
ful and  revolting  to  the  Republican  feeling.  They  do 
this  in  order  to  drive  the  Republicans  to  the  position 
of  enemies  to  all  compromise. 


POLITICAL    EXPRESSIONS.  107 

Second— Republican  politicians,  some  of  whom 
appear  to  think  more  of  a  Chicago  platform  than  they 
do  of  the  Bible— or,  at  least,  profess  to  do  so.  They  care  ' 
fifty  times  as  much  for  their  party  and  its  programme 
as  they  do  for  the  country.  When  urged  to  concur  in  a 
compromise  with  the  Border  Slave  States,  one  of  this 
class  said,  "  No  compromise.  If  they  choose  to  go, 
let  them  go.  We  can  get  along  without  them.  We 
can  form  a  confederacy  with  Canada  and  establish  a 
great  Northern  Republic."  Publicly,  of  course,  they 
profess  great  attachment  to  the  Constitution ;  and 
assume  to  be  its  friends  par  excellence,  while  they 
refuse  to  lift  a  finger  to  save  it,  except  in  the  imprac- 
ticable way  of  coercion  and  civil  war.  Just  at  this  time 
they  are  the  advocates  of  warlike  preparation,  strength- 
ening the  hands  of  government,  and  all  that ;  and  they 
decry  every  one  who  speaks  of  concession  and  arrange- 
ment as  a  traitor.  They  call  him  weak-kneed  and 
dough-faced.  They  step  before  the  real  lovers  of  the 
Constitution  and  the  Union,  push  them  one  side,  and 
cry  out,  "  We  are  the  true  patriots ;  we  are  the  true 
lovers  of  the  Constitution." 

Third— The  other  party  are  the  moderate  and  consid- 
erate men  of  all  parties  who  love  the  Constitution  and 
the  Union  more  than  they  love  party ;  who  cling  to 
them  as  the  palladia  of  all  they  hold  sacred  and  dear. 
To  save  them  from  destruction  they  are  willing  to 
concede  every  just  right  to  the  slave  States.  They  are 
anxious  to  make  some  arrangement  which  will  confirm 
the  Union  sentiment  in  the  border  slave  States.  They 
are  just  as  strong  in  favor  of  supporting  the  govern- 
ment, and  giving  it  power  and  efficiency,  as  the  sternest 
Republicans ;  but  they  are,  at  the  same  time,  equally 


108  MISCELLANEOUS   WRITINGS. 

as  anxious  that  all  occasion  for  testing  the  strength 
of  government  may  be  ..obviated  by  paternal  and 
peaceful  arrangement.  They  are  anxious  for  this, 
because  they  believe  it  to  be  the  only  practicable  method 
of  preserving  the  national  existence.  They  are  the 
people  whom  the  politicians  call  weak  in  the  knees, 
destitute  of  backbone,  and  such  like  liberal  epithets. 

IS  NOT  THIS  EXACTLY  TRUE  ?       Now,  which  of  these 

parties  are  we  to  choose  ?  Are  we  to  stand  by  and 
see  the  country  go  to  pieces,  and  not  lift  a  hand  to 
prevent  it  ?  The  border  slave  States  will  certainly 
join  the  Southern  Confederacy  unless  something1  be 
done  to  confirm  the  Union  sentiment,  which,  at  the 
present  moment  is  in  the  ascendant  there.  But  though 
now  in  the  ascendant,  the  doctrines  of  secession  are  con- 
stantly preached  by  a  thousand  interested  missionaries 
from  the  Gulf  States,  and  will  assuredly  prevail, 
unless  we  enter  into  some  arrangement  which  shall 
demonstrate  our  willingness  to  yield  the  South  a 
fair  participation  of  the  public  territory.  It  is  not 
enough  for  us  to  say  that  we  intend  no  invasion  of 
the  rights  of  the  South.  They  think  otherwise.  They 
interpret  the  Republican  platform  otherwise.  True, 
the  most  moderate  men  of  the  South  might  and  would 
be  satisfied  with  things  as  they  are ;  but  the  masses 
will  not  be,  and  the  question  is  simply  this  :  Shall  we 
divide  the  territory,  or  shall  we  divide  the  country? 
Another  proposition  is  equally  clear  :  If  the  border 
slave  States  do  join  the  Southern  Confederacy,  coercion 
is  out  of  the  question.  We  are  then  a  broken  and 
divided  empire.  Our  glory  and  our  greatness  are 
extinct. 

It  is  also  clear  that  nothing  is  necessary  to  be  done 
which  the  North  cannot  honorably  agree  to.     What 


POLITICAL   EXPRESSIONS.  109 

concession  of  principle  is  involved  in  adopting  the  line 
of  thirty-six  degrees  and  thirty  minutes  as  a  perpetual 
line  between  slave  labor  and  free  ?  The  Chicago  plat- 
form ?  Does  that  platform  mean  to  declare  that  the 
Southern  States  are  entitled  to  none  of  the  territories  ? 
If  it  does,  it  declares  a  solecism.  Whatever  its  terms 
may  be,  its  spirit  is  only  defensive— not  aggressive. 

Slavery  was  marching  northward,  striding  over 
Kansas  and  the  West.  The  Supreme  Court  declared 
it  lawful  everywhere  in  the  public  territories.  The 
Republican  party  raised  its  protest  against  this 
advance  of  the  slave  power.  This  is  simply  its  position. 
Its  language  may  be  strong ;  but  the  spirit  and  mean- 
ing of  it  was  simply  this — "  thus  far  shalt  thou  go, 
and  no  farther."  Now  an  agreement  or  compromise, 
which  ends  the  strife,  and  drives  the  stake,  and  lays 
the  line  of  demarcation  forever,  is  not  concession  of 
principle,  nor  a  compromise  of  honor,  but  a  fair 
adjustment  of  conflicting  claims. 

Then  which  of  the  parties  are  we  to  choose,  the 
politicians  or  the  peacemakers  ?  As  for  me  and  my 
house,  our  faces  are  set  for  conciliation  and  com- 
promise. 


Speech  at  Newark  on  the  celebration  of  Washing- 
ton's Birthday,  the  evening  of  February  22,  1861. 

Joseph  P.  Bradley  Esq.,  was  then  announced,  and 
spoke  substantially  as  follows  : 

Friends  and  Fellow-Citizens :— I  understand  this 
meeting  was  intended  to  be  free  from  a  partisan  char- 
acter. As  such  it  was  represented  to  me,  and  as  such 
I  complied  with  the  request  to  offer  some  remarks  in 


110  MISCELLANEOUS   WRITINGS. 

your  presence.  This  is  no  time  for  the  indulgence  of 
party  feelings,  or  the  promotion  of  party  objects.  A 
common  danger,  which  threatens  our  country,  renders 
it  necessary  that  those  should  be  discarded— a  danger 
such  as  has  not  been  faced  since  the  times  of  the 
Revolution,  and  those  which  immediately  followed  it. 

I  know  it  is  very  hard  to  rise  above  the  influences 
of  party  prejudice.  Often  it  almost  drowns  the  senti- 
ment of  patriotism.  Party  rancor  and  party  hatred 
are  the  last  serpents  which  the  genius  of  patriotism 
can  crush.  But  in  all  great  emergencies  like  that  in 
which  we  now  are,  crushed  they  must  be,  or  else  we 
shall  drift  on  to  certain  and  irretrievable  ruin.  [Pro- 
longed applause.] 

The  celebration  of  this  day  is  a  fitting  occasion  to 
call  these  sentiments  to  mind.  No  man  ever  lived 
who  rose  so  far  above  the  paltry  prejudices  of  the  hour 
and  of  the  partisan  as  George  Washington.  His 
motto  was  his  country  only.  We  have  just  heard  the 
preceding  speaker  read  the  solemn  words  of  warning 
which  he  addressed  to  his  countrymen  when  retiring 
from  public  life.  They  sound  almost  like  a  dirge  on 
the  ear — or  like  the  burden  of  some  ancient  prophet — 
foreshadowing  the  dark  days  of  evil  for  time  which  are 
to  afflict  a  guilty  and  infatuated  people. 

In  turning  back  to  those  passages  in  his  history 
which  seem  most  fitting  for  our  present  contemplation, 
none  have  struck  me  more  forcibly  than  those  which 
preceded  the  adoption  of  the  Constitution.  The  Revo- 
lution had  triumphed— victory  was  won— peace  was 
smiling  over  the  land — and  everything  betokened  the 
inauguration  of  a  prosperous  age ;  but  the  demon  of 
anarchy  was  stalking  abroad.  When  there  was  no 


POLITICAL   EXPRESSIONS.  Ill 

public  enemy  without,  then  the  furies  of  internal 
dissension  seemed  to  be  let  loose.  There  was  a  confed- 
eration of  States  ;  but  it  was  not  a  united  government, 
every  State  did  what  was  right  in  its  own  eyes, 
furnished  the  supply  which  Congress  demanded  when 
they  chose,  and  refused  them  when  they  chose. 

Individuals  imitated  the  examples  of  the  States, 
and  armed  themselves  in  hostility  to  their  own  Govern- 
ment. In  Massachusetts  a  very  formidable  armed 
insurrection  arose  in  the  western  counties.  The  Courts 
were  forcibly  closed  and  not  allowed  to  assemble,  and 
general  gloom  prevailed.  The  Government  was  crum- 
bling into  atoms,  dissensions  and  chaos  were  the  order 
of  the  day. 

This  was  in  1786.  Washington  was  fifty-four 
years  of  age.  It  is  interesting  to  us  to  know  how  he 
thought,  and  how  he  acted,  at  such  a  time  as  this. 
It  seemed  as  though  all  for  which  he  and  his  compeers 
had  toiled  through  the  dark  and  dreary  days  of  the 
Revolution  was  in  peril  of  imminent  and  inglorious 
destruction.  It  seems  so  now.  How  Washington  felt, 
and  how  he  acted  then,  present  a  lesson  well  worthy 
of  the  deepest  reflection. 

I  have  before  me  several  of  his  letters  written  dur- 
ing this  period,  and  whilst  the  Constitution  was  under 
discussion,  which  shows  to  us  my  beau  ideal  of  a  true 
patriot— that  is,  a  patriot  above  the  spirit  of  party. 

[Mr.  Bradley  here  read  extracts  from  letters  written 
by  Washington  to  Jay,  Madison  and  Lafayette.] 

These  are  the  sentiments  on  which  our  national 
existence  rested  for  seventy-five  years,  and  with  which 
every  American  citizen  should  at  this  moment  be 
actuated.  The  anxieties,  the  impulses,  the  heart- 


112  MISCELLANEOUS    WRITINGS. 

throbbing  yearnings  for  the  good  of  the  whole 
country,  and  the  union  of  the  whole  country,  on 
principles  of  justice  and  mutual  sacrifice,  are  needed 
now  no  less  than  they  were  needed  then.  These 
were  the  feelings  that  glowed  in  the  bosom  of  the 
Father  of  his  Country,  and  if  he  were  alive  they 
would  glow  in  his  bosom  now.  [Applause.] 

The  union  of  the  country,  and  the  Constitution 
which  was  found  to  preserve  and  support  it,  and  a  spirit 
of  mutual  concession  and  sacrifice  both  emanating 
from  and  sanctified  by  the  spirit  of  lofty  patriotism, 
untainted  by  party  feeling,  party  animosity  or  party 
prides — these  are  the  objects  for  which  he  labored ; 
this  is  the  spirit  by  which  he  was  animated— and  he 
preaches  them  to  us  this  day,  in  a  voice  of  touching 
entreaty,  coming  down  from  the  echoes  of  the  past,  in 
tones  so  eloquent  that  none  but  traitors  can  refuse  to 
hear.  [Tumultuous  applause.]  Ah !  ye  that  spurn 
the  institutions  which  he  helped  to  frame,  and  over 
the  inauguration  of  which  he  presided,  and  strive  to 
tear  asunder  with  unhallowed  hands  the  glorious 
flag  which  he  unfurled— ye  that  spurn  the  holy  love  of 
country,  those  patriotic  feelings  of  mutual  forbearance, 
concession  and  sacrifice,  which  animated  him  and  his 
compeers,  and  which  he  endeavored  to  impress  upon 
the  hearts  of  his  countrymen— ye  that  cling  to  local 
and  party  prejudices  in  a  time  of  general  danger  and 
prevailing  treason,  and  forget  that  you  have  a  common 
interest  in  the  welfare  of  the  whole  country,  and  of  every 
part  of  it— I  charge  you  never  to  invoke  the  great  name 
of  Washington  as  a  patron  of  your  principles  or  your 
deeds.  Could  his  pure  and  majestic  spirit  look  down 


POLITICAL   EXPRESSIONS.  113 

upon  you  from  the  place  of  his  serene  abode,  his  grave 
and  indignant  form  would  chill  your  miserable  hearts 
to  stone.  [Great  applause.] 

But,  my  friends,  let  us  look  for  better  things  to 
come,  and  that  we  may  yet  see  the  glorious  institu- 
tions that  have  promoted  the  interests  of  freedom 
throughout  the  world,  shall  be  preserved  by  mutual 
conciliation  and  sacrifice. 

Mr.  Bradley  resumed  his  seat  amid  loud  applause. 


It  thus  appears  that  as  long  as  there  remained  the 
slightest  hope  of  reconciliation  and  compromise  with 
the  South,  Mr.  Bradley  was  among  the  most  earnest 
in  favor  of  it,  and  was  ready  to  make  any  honorable 
concession  to  accomplish  it.  But  the  moment  the 
flame  of  rebellion  burst  out  into  open  violence,  his 
whole  tone  was  changed.  In  his  view,  it  then  became 
simply  a  question  of  country  or  no  country  ;  a  ques- 
tion whether  we  would  stand  by  our  free  institutions 
till  the  last  drop  of  blood  was  shed,  or  whether  we 
should  tamely  submit  to  have  them  destroyed  by 
wicked  hands  before  our  eyes.  And  as  in  a  foreign 
war  it  is  our  duty  as  well  as  a  point  of  honor  to 
stand  by  our  own  Government  even  though  some  of 
its  measures  may  not  be  approved ;  so,  in  this  war, 
it  is  our  duty  to  stand  by  our  Government  in  its  efforts 
to  put  down  treason  and  rebellion.  These  views  will 
be  found  expressed  in  the  following  articles.  The  first 
appeared  as  a  communication  in  the  Advertiser  on  the 
15th  of  April,  1861,  a  few  days  after  the  attack  on 
Fort  Sumter  and  the  troubles  at  Baltimore  : 


114  MISCELLANEOUS   WRITINGS. 

THE  CRISIS  AND  ITS  DUTIES. 

[Published  April  15,  1861.] 

There  can  be  no  question  or  vacillation  now. 
EVERY  CITIZEN  is  BOUND  TO  SUSTAIN  HIS  GOVERNMENT. 
When  questions  of  policy  were  discussing  we  might 
differ.  We  may  privately  differ  from  Government  as  to 
its  policy  now.  But  Government  has  declared  its  policy, 
has  taken  the  responsibility  of  action,  and  now,  we 
must  either  stand  by  our  country,  or  be  prepared  to 
fall  in  its  ruins. 

We  had  hoped  this  painful  crisis  might  have  been 
avoided.  We  believe  it  could  have  been  avoided.  We 
labored  hard  to  effect  that  result.  But  it  was  not 
effected,  and  civil  war  is  upon  us,  and  it  is  no  time 
now  to  indulge  in  useless  regrets.  The  proper  parties 
will  be  held  responsible  at  a  proper  time. 

It  is  now  no  longer  a  party  question.  It  is  not  a 
Republican  question,  nor  a  Democratic  one.  It  is 
a  question  of  government,  and  law,  and  country. 
When  our  country,  as  represented  by  the  constituted 
authorities  of  government,  calls  to  duty,  either  in  a 
contest  of  self-preservation  or  against  a  foreign  foe,  it 
is  no  time  to  inquire  who  are  in  power,  or  by  what 
party  the  Government  is  administered.  To  do  so, 
might  show  a  loyalty  to  party  organization,  but  it 
would  be  practical  treason.  We  need  not  yield  our 
opinions  ;  we  need  not  cease  to  urge  our  views  in  our 
domestic  councils  ;  nor  to  influence,  so  far  as  we  may, 
the  views  of  our  own  public  agents  and  rulers,  but  to 
those  with  whom  our  country  is  at  issue,  we  must 
show  a  united  front.  We  must  reserve  to  ourselves 
the  sole  right  of  abusing  our  rulers.  But  since  they 


POLITICAL   EXPRESSIONS.  115 

are  our  agents,  and  the  representatives  of  our  sover- 
eignty, others  must  respect  them.  We  may  scold,  but 
we  must  obey.  We  may  grumble,  but  we  must  fight ; 
fight  under  and  fight  for  our  flag,  no  matter  by  whom 
the  staff  is  upheld. 

But  in  the  light  of  the  CONSTITUTION  and  the  LAWS, 
our  government  is  right.  Secession  has  always  been 
treason.  Those  who  are  familiar  with  its  history 
know  that  the  people  of  this  country  adopted  the 
Constitution  for  the  very  purpose  of  putting  an  end 
to  nullification  and  secession.  Its  very  preamble 
declares  its  object  to  be  to  form  a  more  perfect  Union, 
and  to  insure  domestic  tranquillity.  It  expressly 
declares  that  no  State  shall  enter  into  any  treaty, 
alliance  or  confederation,  nor,  without  the  consent  of 
Congress,  keep  troops  or  ships  of  war  in  time  of  peace, 
nor  enter  into  any  agreement  or  compact  with  another 
State,  or  with  a  foreign  power,  or  engage  in  war 
unless  actually  invaded ;  and,  for  the  settlement  of 
differences  that  may  arise,  the  judicial  power  of  the 
Government  is  extended  to  controversies  between  two 
or  more  States  ;  and  the  Constitution  and  the  United 
States  are  declared  to  be  the  supreme  law  of  the  land. 

The  moment  South  Carolina  interfered  with  the 
execution  of  the  Federal  laws,  the  moment  she  laid  the 
weight  of  her  finger  on  a  foot  or  a  pound  of  Government 
property,  with  intent  to  occupy  and  keep  the  same  by 
public  force,  that  moment  treason  was  committed ; 
and  as,  by  the  same  Constitution,  the  President  is  to 
"  take  care  that  the  laws  be  faithfully  executed,"  that 
moment  it  was  his  constitutional  duty  to  employ 
the  executive  force  of  the  country  to  execute  the  laws. 
The  constitutionality  of  the  course  now  taken  by 
Government  cannot  be  called  in  question. 


116  MISCELLANEOUS    WRITINGS. 

We  never  urged  compromise  on  the  ground  that 
secession  was  constitutional,  or  that  it  was  to  be 
viewed  with  a  moment's  patience ;  but  only  on  the 
ground  of  expediency— as  the  best  way  of  restoring 
harmony  and  peace  to  the  country.  We  still  believe 
that  it  would  have  been  wisest  and  best.  Our  own 
view  always  was,  conciliation  first— nay,  conciliation 
to  the  extreme  point  of  liberality — and  then,  if  nothing 
would  avail  for  the  attainment  of  peace  and  submis- 
sion to  the  common  Government  of  the  country,  then, 
and  not  till  then,  let  force  decide  whether  we  have  a 
country  or  not.  But  that  is  also  past. 

Now  the  Government  has  put  forth  the  arm  of 
its  power  to  execute  the  laws,  and  let  them  be  obeyed. 
Let  there  be  no  traitors  ;  no  double-minded  among  us. 
Let  there  not  even  be  any  vacillating.  If  any  treason 
is  found  to  exist  among  us,  let  it  be  crushed  in  the 
bud.  Let  us  do  all  that  in  us  lies  to  support  the  dignity 
and  glory  of  the  country  which  gave  us  birth.  Let 
not  New  Jersey  be  backward.  She  has  never  been 
backward  in  duty  before ;  let  her  be  true  to  her 
old  traditions  now.  We  hope  the  Executive  of  this 
State  will  take  all  such  measures  as  are  in  its  power 
to  be  ready  at  a  moment's  warning  to  aid  the  com- 
mon force,  and  to  preserve  the  domestic  tranquillity 
of  the  State. 

But  how  far,  it  may  be  asked,  are  we  to  support 
the  acts  of  Government  ?  So  far,  most  assuredly,  we 
answer,  as  Government  shall  see  fit  to  go  within  the 
line  of  its  constitutional  power;  and  that  clearly 
extends  to  the  possession  and  occupation  of  all  the 
Government  forts  and  arsenals  and  post  offices,  and 
other  public  property,  and  the  execution  of  the  federal 


POLITICAL    EXPRESSIONS.  117 

laws  in  all  the  States.  Whether  Government  will 
consider  it  expedient  to  go  so  far  as  that  is  for  it  to 
determine.  The  Congress  has  been  called,  and  if  the 
national  will,  expressed  in  a  legitimate  manner,  shall 
deem  it  advisable,  on  Just  terras,  to  allow  a  portion 
of  the  United  States  to  separate  itself  from  the  mother 
country,  and  erect  an  independent  government,  it  will 
then  be  time  enough  to  call  in  question  the  attempt 
of  the  Executive  to  maintain  the  national  authority 
in  the  whole  country.  Meanwhile  it  will  be  our  right 
and  our  duty  to  contribute  our  mite  toward  influenc- 
ing that  national  will  in  such  direction  as  each  of  us, 
having  the  good  of  his  country  sincerely  at  heart, 
may  deem  most  for  the  public  welfare. 


On  the  22d  of  April,  1861,  a  mass  meeting  was 
held  at  Newark  to  take  into  consideration  the  public 
crisis  and  to  devise  measures  for  aiding  the  Govern- 
ment in  the  suppression  of  the  rebellion.  Mr.  Bradley 
was  requested  to  draw  the  resolutions  for  this  meeting, 
which  he  did,  and  enforced  them  by  a  speech,  which 
was  not  reported.  The  resolutions  are  as  follows : 

RESOLUTIONS. 

WHEREAS,  the  subversion  of  our  country's  Constitution  and 
Government  is  threatened  by  armed  bands  of  traitors  in  several  States 
of  this  Union,  and  the  Federal  authorities  have  found  it  necessary  to 
call  into  action  the  military  force  of  the  country  for  the  maintenance  of 
the  laws ;  and  WHEREAS,  the  preservation  of  our  national  existence 
requires  the  co-operation  of  every  loyal  American  citizen  at  this  crisis 
of  our  history,  therefore, 

Resolved,  That  it  is  the  firm,  unanimous,  unalterable  determination 
of  the  citizens  of  Newark,  first  of  all,  and  above  all  other  duties,  laying 


118  MISCELLANEOUS   WHITINGS. 

aside  all  party  distinctions  and  associations,  to  sustain  the  Government 
under  which  they  live,  which  was  adopted  by  the  people's  own  choice, 
and  which  has  never  brought  anything  but  blessings  in  its  train,  and 
to  this  object  they  pledge  their  lives  and  property. 

Resolved,  That  we,  the  said  citizens  of  Newark,  will  give  our 
united,  strong  and  unwavering  support  to  the  President  of  the  United 
States  and  the  General  Government  in  its  endeavor  to  enforce  the 
laws,  preserve  the  common  property,  vindicate  the  dignity  of  the  Gov- 
ernment, and  crush  the  treasonable  conspiracies  and  insurrections 
which  are  rampant  in  various  parts  of  the  land,  leaving  to  them,  as 
the  constituted  authorities,  the  exercise  of  their  rightful  discretion, 
within  all  Constitutional  limits,  as  to  the  mode  and  manner  in  which  it 
is  to  be  done  ;  at  the  same  time  sincerely  deploring  the  necessity  which 
compels  us  to  array  ourselves  in  opposition  to  men  of  the  same  blood, 
and  who  possess,  in  common  with  us,  the  traditions  of  the  Revolution, 
solemnly  declaring  that  nothing  but  the  highest  and  most  sacred  sense 
of  duty  to  our  country  and  our  God  could  lead  us  to  risk  the  shedding 
of  our  brothers'  blood. 

Resolved,  That  we  utterly  execrate  and  abhor  the  ringleaders  in 
this  treason  and  rebellion,  as  enemies  of  all  good ;  as  false  to  their 
country,  their  oaths,  and  their  honor ;  and  that  they  have  forfeited  all 
claim  to  our  fraternal  sympathies  and  regards  ;  but  we  sincerely  com- 
miserate and  sympathize  with  our  fellow-citizens  in  those  States  where 
rebellion  is  predominant,  who  still  maintain  their  loyalty  to  the  Consti- 
tution and  country,  but  who  are  unable,  in  the  insane  and  treasonable 
commotions  which  surround  them,  to  make  their  voices  heard. 

Resolved,  That  by  the  Constitution  we  are  one  nation,  indissol- 
uble by  the  action  of  any  State  or  section  ;  that  the  Constitution  and 
the  laws  provide  the  means  of  redress  for  every  wrong,  actual,  fancied 
or  apprehensible ;  and  that,  when  peace  and  obedience  to  law  are 
restored,  we  shall  be  ready  to  co-operate  with  our  fellow-citizens 
everywhere,  in  Congress  or  convention,  for  the  relief  of  all  supposed 
grievances,  yielding  ourselves,  and  expecting  others  to  yield,  to  the 
will  of  the  whole  people  lawfully  expressed. 

Resolved,  That  the  Common  Council  be  respectfully  requested  to 
make  such  appropriations  as  may  be  necessary  for  the  support  of  the 
families  of  those  of  our  citizens  who  shall  enter  into  military  service 
under  the  call  of  the  constituted  authorities,  and  we  pledge  them  the 
unanimous  support  of  the  people  in  so  doing. 

Resolved,  That  a  committee  of  twenty-five  citizens  be  appointed 
by  the  chairman  to  take  in  charge  and  carry  forward  all  measures 


POLITICAL   EXPRESSIONS.  119 

needful  for  the  equipment  of  troops,  and  to  co-operate  with  the  Com- 
mon Council  in  the  objects  of  the  last  resolution,  and  to  take  such 
measures  in  co-operating  with  the  authorities  for  the  general  security 
and  protection  as  may  be  deemed  advisable. 

The  only  other  document  we  shall  reproduce  com- 
prises the  resolutions  adopted  by  the  great  Union 
meeting  at  Newark,  which  was  addressed  by  Hon. 
Daniel  S.  Dickinson,  September  20,  1861,  together 
with  the  speech  by  which  Mr.  Bradley  introduced 
them.  These  resolutions  were  also  from  Mr.  Bradley 's 
pen,  and  express  the  position  which  he  has  always 
assumed  since  the  Rebellion  broke  out : 

MR.  BRADLEY'S  SPEECH. 

Joseph  P.  Bradley,  Esq.,  was  then  introduced  by 
the  chairman,  and  was  most  warmly  received.  He 
said  : 

Friends  and  Fello\v-Citizens : — It  is  made  my 
duty  by  the  arrangements  which  have  been  made  by 
those  who  have  called  this  meeting  together,  to  present 
for  its  consideration  resolutions  expressive  of  their 
views  in  respect  to  the  great  and  important 
events  which  are  hovering  over  our  country.  [  Cheers.  ] 
Before  reading  these  resolutions,  I  will  take  the  liberty 
to  express  in  a  few  and  plain  words  the  general  purport 
and  essence  of  the  resolutions  that  will  be  offered.  In 
the  first  place,  we  believe  that  this  Union  and  this  Gov- 
ernment of  ours,  under  which  we  live,  under  which  we 
have  so  long  been  happy  and  prosperous,  under  which 
more  freedom,  more  liberty  and  more  enjoyment  is 
experienced  than  under  any  other  government  that 
has  ever  existed  on  the  face  of  the  globe,  is  and  must, 
and  shall  be  maintained  [cheers],  and  that  it  ought  to 
be  so  ;  that  it  was  meant  to  be  so,  and  that  to  maintain 


120  MISCELLANEOUS   WRITINGS. 

the  contrary  was  treason  to  the  principles  upon  which 
the  Government  and  our.,  institutions  are  founded. 
[Enthusiastic  cheers.]  In  the  next  place,  we  believe, 
and  we  hold  it  to  be  true,  that  the  Constitution  under 
which  we  live,  was  adopted  by  the  people  of  this 
country  for  the  purpose  of  preserving  and  defending 
that  Union  and  Government,  and  that  those  who 
attempt  to  subvert  it,  and  to  rend  this  fair  country 
into  divided  fragments  are  traitors  to  the  principles 
of  the  institutions  that  adorn  the  American  world. 
[Cheers.  A  voice  :  "  That's  so."] 

In  the  third  place,  we  believe,  and  hold  it 
to  be  true,  that  at  such  a  time  as  this,  when 
treason  and  rebellion  are  stalking  about  in  the  land, 
and  are  not  absent  even  from  ourselves,  we  should 
forget  all  party  differences  and  bury  them  under  our 
feet,  and  come  up  Democrats,  Republicans,  Americans 
or  whatever  other  party  there  may  be,  shoulder  to 
shoulder,  as  we  stand  here  to-day,  in  support  of  the 
Constitution  and  Government,  until  its  authority  is 
vindicated  forever.  [Loud  cheers.]  In  the  fourth 
place,  that  we  will,  because  we  must,  trust  the  man- 
agement of  the  controversy  to  the  constituted 
authorities,  whoever  they  may  be,  forgetting  for  the 
moment  all  other  political  objects.  We  shall  stand 
by  them,  not  because  they  are  of  this  political  shade 
or  of  that,  but,  because  in  the  providence  of  God  they 
happen  to  be  at  the  head  of  our  affairs,  and  if  we  do 
not  support  them  we  cannot  support  our  leaders. 
[Cheers.] 

In  the  fifth  place,  we  believe  that  we  ought  to 
unite  and  organize  ourselves  together  as  a  Country 
party  [cheers],  as  a  Union  part}'  [cheers],  and  as  a 


POLITICAL   EXPRESSIONS.  121 

party  determined  to  see  the  Government  through 
[cheers] ;  that  we  will  stand  by  the  Constitution 
which  is  the  Constitution  of  thirty-three  States,  and  not 
of  seventeen  States,  and  that  we  will  do  this  without 
any  fear  of  danger  or  hope  of  reward.  [Cheers.] 
That  we  will  do  it  because  it  is  our  duty  to  do  it ; 
because  our  prosperity  depends  upon  it ;  and  that  we 
will  do  it  because  we  have  sworn  allegiance  to  this 
Constitution  and  this  Government.  After  alluding  to 
the  peace  party,  and  remarking  that  we  should  have 
submission  to  the  Constitution  first  and  compromise 
afterward  [cheers],  Mr.  Bradley  read  the  resolutions, 
as  follows : 

RESOLUTIONS. 

1.  Resolved,  That  "the  Union  must  and  shall  be  preserved;"  that 
its  preservation  is  demanded  by  the  history  of  the  past  and  the  hopes 
of  the  future ;  by  the  wisdom  of  its  founders  and  the  national  happi- 
ness and  prosperity  which  it  has  caused  ;  by  a  regard  to  the  sanctity 
of  law,  and  the  success  of  free  institutions ;  as  an  example  to  the 
world,  and  a  guaranty  to  future  ages,  of  the  ultimate  triumph  of  right, 
liberty  and  equality. 

2.  Resolved,  That  the  Constitution  of  the  United  States  is  the 
palladium  of  the  Union,  and  was  adopted  by  our  fathers  for  the  express 
purpose  of  rendering  it  perpetual ;  that  to  it,  as  the  supreme  law  of 
the  land,  we  owe  our  first  and  highest  allegiance,  paramount  to  all 
other  allegiance ;  and   that    none    but    traitors    and    parricides   will 
attempt  to  subvert  it  or  to  desecrate  the  flag  which  waves  over  us  as 
its  expressive  symbol. 

3.  Resolved,  That  in  the  present  contest  for  the  existence  of  the 
Union,  we  should  recognize  no  party,  believing  it  to  be  the  solemn 
duty  of  every  patriot  to  lay  aside  party  names  and  party  prejudices, 
and  rally  to  the  support  of  the  Government  until  rebellion  shall  be 
crushed  and  treason  annihilated ;  and  that  the  nomination  of  candi- 
dates for  any  office  on  party  grounds  tends  to  excite  a  strife  which 
cannot  fail  to  be  productive  of  evil  in  the  present  unhappy  condition 
of  the  country. 


122  MISCELLANEOUS   WRITINGS. 

4.  Resolved,  That  when  our  Government  shall  be  rescued  from 
danger  of  annihilation,  and  we  can  once  more  say  we  have  country 
and  a  name  to  be  proud  of ;  when  it  shall  again  be  a  boast  and  a  shield 
of  safety  all  over  the  world  to  say,  "  I  am  an  American  citizen  ; " — it 
will  then  be  time  enough  to  remember  our  party  names,  and  to  discuss 
party  issues  ;  but  till  then  to  do  so  will  be  to  fight  against  our  brethren, 
whilst  the  enemy  is  destroying  our  common  heritage. 

5.  Resolved,  That  as  long  as  two  hundred  thousand  rebels  are 
thundering  at  the  gates  of  the  Capital,  none  but  those  who  are  cravens 
or  false-hearted  will  cry  "  peace,  peace ; "  and  none  but  traitors  will 
seek  to  restrain  our  strong-handed  yeomanry  from  rushing  to  the 
defence  of  our  common  country  and  Government. 

6.  Resolved,  That  in  the  exercise  of  the  war  power,  and  in  the 
midst  of  actual  hostilities,  it  is  no  time  to  trifle  with  or  wink  at  treason, 
either  active  or  covert ;  and  if  any  persons  are  found  within  our  lines 
whose  loyalty  is  reasonably  suspected,  the  only  safe  course  is  to  deprive 
them  of  the  power  to  do  mischief;  and  that  in  arresting  and  securing 
those  who  aid  and  abet  the  cause  of  our  enemies  and  suppressing 
seditious  and  treasonable  publications,  the  Government  exercises  only 
the  ordinary  right  of  self-preservation,  and  the  power  which  is  implied 
in  the  right  to  resist  and  suppress  an  internal  war. 

7.  Resolved,  That  all  Union-loving  men  who  feel  that   party 
should  be  ignored  and  that  our  Government  should  be  sustained  and 
upheld  in  its  endeavors  to  put  down  rebellion  and  enforce  obedience 
to  the  Constitution  and  laws  throughout  the  whole  country,  and  who 
are  willing  to  act  on  these  views,  should  organize  themselves  for  pro- 
moting and  carrying  out  such  a  sacred  object  and  for  thwarting  and 
overruling  the  insidious  acts  of  those  who  profess  a  desire  for  honor- 
able peace,  but  are  ready  for  a  dishonorable  surrender  of  the  integrity 
of  their  country. 

8.  Resolved,  That  a  committee,  to  consist  of  seven  members,  be 
appointed  by  this  meeting,  to  inaugurate  such  an  organization  for  this 
county,  and  to  correspond  with  similar  committees  from  other  counties, 
in  order  to  perfect  such  an  organization  throughout  the  State,  so  as  to 
give  to  the  loyal  people  of  New  Jersey  an  opportunity  of  making  their 
voice  heard,  and  their  influence  felt,  in  the  pending  struggle  for  a 
national  victory. 

The  resolutions  were  adopted  by  acclamation. 


POLITICAL   EXPRESSIONS.  123 

It  thus  appears  that  Mr.  Bradley  has  always  been 
eminently  conservative  in  his  views  on  national  ques- 
tions. It  also  appears  that  on  the  subject  of  the 
Rebellion  he  has  never  entertained  but  a  single  view- 
that  it  must  be  put  down  at  all  hazards,  and  that  no 
more  compromises  can  be  entertained  till  the  authority 
of  the  Government  over  the  whole  country  is  restored. 
This  is  the  sum  and  substance  of  the  whole  record ; 
and  show's  that  Mr.  Bradley  stands  where  every  true 
patriot  stands— on  the  Constitution  as  it  is,  and  the 
Union  as  it  was. 


SPEECH 

OK 

JOSEPH   P.  BRADLEY,  ESQ 

AT  THB 

UNION     ADMINISTRATION    MEETING, 

HELD  IN  NEWARK,  OCTOBER  22,  1862. 


[From  the  Newark  Daily  Advertiser,  October  23,  1863.] 

THE  ADMINISTRATION  MEETING. 

SPEECHES   BY   MESSRS.    BRADLEY   AND    OTHERS. 

The  mass  meeting  of  friends  of  the  Administration, 
held  at  Concert  Hall  last  Wednesday,  was  another 
impressive  demonstration  of  popular  sentiment,  the 
spacious  hall  being  filled  to  overflowing  at  an  early 
hour ;  and  the  remarks  of  the  speakers  were  listened 
to  with  deep  interest.  The  main  feature  of  the  evening 
was,  of  course,  the  speech  of  Joseph  P.  Bradley,  Esq., 
their  candidate  for  Congress  in  this  district,  it  being 
the  first  public  expression  of  his  sentiments  since  his 
nomination.  Though  fresh  from  the  court  room, 
overwhelmed  by  professional  cares,  and  somewhat 
embarrassed  by  a  cold,  Mr.  Bradley  warmed  up  with 
the  interest  of  his  subject,  and  it  is  not  too  much  to 
say  that  he  more  than  realized  the  most  favorable 
anticipations  of  his  friends.  His  speech,  to  a  full 
report  of  which  we  yield  a  large  portion  of  our  space, 
which  could  not  be  better  filled,  was  the  fresh  and 
vigorous  utterance  of  one  whose  thoughts  are  not 


126  MISCELLANEOUS   WRITINGS. 

accustomed  to  travel  in  the  settled  groove  of  partisan 
machinery,  or  among  the  cunning  platitudes  of  the 
mere  politician— but  the  enlarged  views  of  a  thought- 
ful and  intelligent  man,  who  has  been  drawn  into  the 
political  arena  solely  through  a  sense  of  duty  to  the 
country ;  and  he  doubtless  did  not  exaggerate  the 
truth  when  he  said  that,  on  personal  accounts — and 
all  others,  save  the  great  principles  at  stake — he  should 
greatly  prefer  the  election  of  the  opposing  candidate 
to  his  own.  But  without  enlarging  upon  the  details, 
we  give  place  to  our  report : 

MR.  BRADLEY'S  SPEECH. 

The  chairman  then  introduced  Joseph  P.  Bradley, 
Esq.,  who  spoke  as  follows  : 

Mr.  Chairman  and  Fellow-Citizens : — I  do  not 
know  that  I  am  well  enough  to-night  to  say  more 
than  a  few  words.  I  am  oppressed  by  a  severe  cold 
in  my  throat  and  chest ;  but  I  have  nevertheless  felt 
it  my  duty,  as  I  have  been  expected  here,  to  make  my 
appearance  and  to  declare  myself  upon  some  of  the 
issues  presented  in  the  present  canvass. 

I  appear  before  you  in  a  position  in  which  I  never 
expected  to  be  placed.  Political  distinction  was 
never  an  object  of  my  ambition,  especially  political 
distinction  of  the  sort  for  which  I  am  now  a  candidate 
before  my  fellow-citizens  of  this  district ;  and  I  could 
not  have  been  persuaded  to  engage  in  this  contest  but 
from  a  sense  of  duty.  I  look  upon  this  election  as  the 
most  important  one  that  has  ever  been  held  within 
my  recollection.  I  believe  that  it  is  the  most  important 
election  that  has  ever  been  held  within  the  memory  of 


POLITICAL  EXPRESSIONS.  127 

any  man  in  this  house.  I  believe  that  the  general 
results  of  the  election  in  the  Northern  States  will  go 
far  towards  settling  and  determining  the  destiny  of 
this  great  republic  ;  and  I  believe  this  because  I  believe 
that  if  the  Democratic  party  shall  be  successful  in  the 
election  of  its  candidates  in  the  Northern  States,  or  in 
the  election  of  a  majority  of  them,  so  as  to  control 
the  next  Congress  of  the  United  States,  the  republic  is 
ended.  This  may  be  a  hard  saying.  I  would  not  say 
it  without  due  deliberation ;  and  when  I  do  say  it,  I 
do  not  mean  to  be  understood  as  saying  that  there 
are  not  in  the  ranks  of  the  Democratic  party  many 
thousands  of  excellent  and  patriotic  men;  but  I  do 
mean  to  say  that  the  secret  councils  of  that  party  at 
this  time  are  controlled  by  men— deep  men— who  have 
not  the  interest  of  their  country  at  heart.  I  believe 
that  those  men  are  deceiving  the  people  who  follow 
them— for  the  people  are  honest— the  masses  are  hon- 
est— but  they  may  be  temporarily  deceived  by  false 
pretenses ;  and  such  I  believe  to  be  the  fact  under  the 
present  organization  and  operations  of  the  Democratic 
party. 

We  cannot  shut  our  eyes  to  the  fact  there  are  now 
two  classes  of  Democrats  ;  and  I  may  as  well  use  here 
on  the  platform  the  words  we  use  on  the  street,  and 
say  that  those  two  classes  are  the  Secession  Democrats 
and  the  War  Democrats,  respectively.  [Applause.] 
We  know  that  there  are  these  distinct  classes  in  that 
party,  and  we  know  further  that  those  who  are  popu- 
larly called  Secession  Democrats  are  the  leaders  of 
that  party— the  leaders  who  meet  at  Trenton,  fifteen 
and  twenty  of  them  at  a  time,  and  consult  about  the 
interests  and  plans  of  the  party  ;  who  direct  all  its 


128  MISCELLANEOUS   WRITINGS. 

councils  and  manage  all  its  affairs,  and  through  whose 
dictation  it  is  that  such  men  as  George  T.  Cobb,  of 
Morristown,  are  thrown  overboard,  and  such  men  as 
Andrew  Jackson  Rodgers  are  nominated  for  Congress. 
I  believe,  therefore,  that  that  party,  if  it  comes  into 
power,  instead  of  wielding  the  resources  of  the  country 
energetically  for  the  restoration  of  the  Constitution 
and  the  laws,  will,  to  say  the  least,  be  pervaded  by 
divided  councils ;  and,  to  say  all  that  I  think  and 
believe,  it  will  be  governed  by  counsels  inimical  to  the 
stability  of  the  republic,  its  honor  and  its  life.  For 
this  reason  I  have  felt,  and  do  feel,  this  to  be  the  most 
important  canvass  that  has  taken  place  within  my 
memory,  and  for  this  reason  also  I  feel  it  my  duty  to 
contribute,  if  I  can,  something  toward  the  success  of 
the  Administration  party,  whose  object,  as  I  understand 
it,  is,  first  of  all,  the  restoration  of  the  authority  of 
the  Constitution  throughout  the  whole  country. 
[Applause.]  If  this  is  not  the  object — the  great  object — 
of  that  party,  then  I  am  not  a  member  of  it.  [Renewed 
applause.]  I  look  upon  this  idea  as  the  one  that 
swallows  up  all  the  rest.  There  are  minor  issues,  it  is 
true  ;  but  they  sink  into  insignificance  when  compared 
with  the  one  great  issue  of  saving  our  country  from 
destruction,  and  from  division,  which  is  destruction. 
Therefore  it  is  that  I  am  here,  and  that  I  have  con- 
sented to  appear  before  you  in  this  political  contest  as 
a  candidate  for  your  suffrages.  I  have  not  sought 
this  position  ;  I  do  not  desire  it ;  and  were  it  not  for 
the  principles  that  are  involved  in  the  issue  I  would 
gladly  see  my  opponent  elected  instead  of  myself. 
[Applause.] 

I  am  not  able,   as   I  said  before,   to    speak    long 


POLITICAL   EXPRESSIONS.  129 

to  night ;  and  my  words  must  be  few  and  pointed.  I 
have  already  indicated  what  I  consider  to  be  the  great 
cardinal  principle  of  the  Administration  party,  namely, 
that  "  The  Union  must  and  shall  be  preserved."  [Pro- 
longed cheering.  ]  In  whatever  way  that  can  be  done, 
and  be  done  most  effectually,  so  let  it  be  done.  I  know 
of  no  conditions  under  which  our  exertions  for  the 
accomplishment  of  this  great  object  are  to  be  placed. 
I  know  of  no  limits  bv  which  they  are  to  be  restrained, 
other  than  the  laws  of  God  and  the  law  of  nations. 
These  we  must  observe.  Our  Constitution  gives  us 
the  broadest  scope  in  which  to  work ;  and  I  will 
observe  here,  that  it  is  puerile  to  say  that  this  or  that 
thing  in  the  conduct  of  the  war  is  "  unconstitutional." 
I  say  that  such  an  assertion  is  incorrect,  illogical,  and 
a  solecism.  Does  not  the  Constitution  contain  the 
war-power  just  as  much  as  it  contains  the  habeas 
corpus  ?  Does  it  not  contain  provision  for  a  power 
on  the  part  of  the  Government  to  suppress  insurrection 
and  rebellion  ?  When  those  powers  are  given,  all  the 
powers  that  we  want  are  given — all  the  powers  we 
can  exercise  or  that  can  be  exercised  within  the  limits 
that  I  have  named— the  laws  of  God  and  the  law  of 
nations.  [Applause.]  It  is  idle  and  worse  than  idle 
to  say  that  the  Constitution  has  been  violated  or 
broken  in  the  conduct  of  this  war.  There  has  been  no 
such  violation  ;  but  they  violate  the  Constitution  who 
stand  up  and  do  nothing  when  the  Constitution  is 
threatened  with  destruction.  [Renewed  applause.] 

I  am  not  going  to  read  to  this  audience— it  is  .not 
necessary  that  I  should— a  legal  opinion  upon  what 
the'  law  of  nations  will  permit  and  what  it  will 
not  permit.  I  take  for  granted  that  the  admin- 


130  MISCELLANEOUS   WRITINGS. 

istration,  having  learned  counsel  around  it,  is 
advised  upon  the  subject ;  and  I  am  willing, 
so  long  as  President  Lincoln  is  at  the  head  of 
affairs,  to  confide  to  him,  and  to  such  councillors  as  he 
calls  to  his  aid,  the  selection  of  measures  whereby  to 
perform  this  great  duty  of  the  Government,  namely, 
to  restore  its  authority  and  that  of  the  Constitution, 
and  to  save  the  country  from  ruin.  Had  I  been  Presi- 
dent, I  might  have  done  some  things  differently ;  I 
do  not  say  whether  I  would  or  would  not ;  but  this 
is  not  the  question.  When  my  captain  tells  me : 
"  Forward,  march  !  the  enemy  is  before  you  ;  "  I  must 
not  stand,  look  behind  me,  and  say,  "  Captain,  it  is 
not  time."  I  tell  you  that  all  subordinate  questions 
are  swallowed  up  in  the  one  great  and  overwhelming 
question  of  self-preservation,  and  they  are  quibblers 
who  say  that  what  is  done  to  effect  that  end  is 
"unconstitutional."  [Prolonged  applause.] 

Having  said  so  much,  what  more  need  I  say  ? 
There  is  the  whole  thing  before  you.  Most  of  you 
here  know  me.  You  know  that  I  never  was  an 
abolitionist.  [Laughter.]  You  know  that  I  was 
always  a  conservative  of  the  conservatives.  The  last 
time — indeed,  the  only  time — I  ever  spoke  in  this  hall, 
was  on  the  evening  of  the  22d  of  February,  1861, 
just  before  President  Lincoln  arrived  at  Washington ; 
and  some  of  you  may  remember  what  a  doleful  speech 
I  made  on  that  occasion.  [Laughter.]  I  remember 
it.  I  made  it  from  my  heart.  Nothing  but  com- 
promise would  suit  me  at  that  time.  I  was  for  com- 
promise to  the  last— for  36:30  through  to  California— 
[laughter]— for  anything  in  God's  name  rather  than 
blood  or  division.  But  the  moment  they  began  to 
throw  mud  at  the  glorious  old  flag,  fired  on  Fort 


POLITICAL  EXPRESSIONS.  131 

Sumter  and  levied  war,  then  we  were  in  [laughter 
and  cheers] ;  and  then  came  up  in  me,  as  it  came  up 
at  the  same  time  in  millions  at  the  North  of  every 
shade  of  opinion  before  that,  a  sentiment  of  devotion 
to  the  Constitution  and  to  the  integrity  of  the 
republic — the  whole  republic — first  of  all  and  before  all. 
Then  we  heard  and  thought  and  felt  no  more  on  the 
subject  of  compromises.  The  day  of  compromise  was 
ended ;  it  was  then  the  day  of  fight.  [Applause.] 
"Not  that  we  loved  Caesar  less,  but  that  we  loved 
Rome  more  ";  not  that  we  felt  any  the  less  disposed  to 
do  justice  to  the  Southern  States  or  people,  but  that 
we  felt  that  we  must  above  all  do  justice  to  ourselves 
and  our  country.  [Prolonged  applause.] 

How  we  have  been  and  are  misunderstood  and 
misrepresented  !  Because  we  love  our  country  more 
than  all  things  else,  and  therefore  have  discarded  the 
idea  of  compromise  when  compromise  is  no  longer  prac- 
ticable, and  when  there  is  no  longer  any  use  in  raising 
that  cry,  we  are  called  abolitionists.  [Laughter.]  Is 
this  fair  ?  7  do  not  want  any  better  Constitution 
than  the  old  one.  I  want  to  see  that  Constitution 
stand  just  as  it  is,  word  for  word  and  letter  for  letter, 
as  long  as  I  live.  I  do  not  want  it  altered  ;  I  do  not 
want  it  violated  ;  I  do  not  want  to  see  the  relation  of 
the  States  to  each  other,  nor  the  relation  of  the  people 
of  the  different  States,  altered  in  the  slightest  degree. 
I  would  have  all  these  remain  as  they  were ;  but  in 
prosecuting  this  war  for  the  preservation  of  the  Union, 
I  would  prosecute  it  as  I  would  prosecute  any  war, 
by  taking  the  ships  of  the  enemy,  if  necessary,  with- 
out compensation  ;  by  taking  the  horses  of  the  enemy 
without  compensation;  yea,  by  taking  their  lives 
without  compensation.  [Applause.] 


132  MISCELLANEOUS   WRITINGS. 

If  any  person  cannot  hold  in  his  head  these  two  ideas, 
it  must  be  either  because  he  shuts  his  eyes  and  ears  to 
them,  or  because  he  is  so  low  in  the  scale  of  intellectual 
existence  that  he  cannot  receive  and  understand  two 
ideas  at  once.  They  say  on  the  other  side,  "  The 
Constitution  as  it  is  and  the  Union  as  it  was  ";  and 
so  do  I.  [Applause.] 

I  say  it  just  as  strongly  as  they  do  ;  but  at  the 
same  time  I  say,  "  Boys,  load  your  guns  ;  take  aim  ; 
fire !  "  [Applause.] 

And  I  say  it  because  that  is  not  a  violation  of  the 
Constitution.  The  suppression  of  rebellion  by  what- 
ever means  the  law  of  nations  allows,  is  permitted  to 
every  Government  in  the  world  ;  it  is  permitted  to  our 
Government ;  and  the  idea  sought  to  be  foisted  upon 
the  people  of  the  North,  that  we  violate  the  Constitu- 
tion when  we  do  this  or  do  that  to  quell  the  rebellion, 
is  the  secret  whisper  of  the  enemy— I  mean  the  old 
enemy — the  Arch  Enemy.  [Laughter.] 

These  are.  general  principles,  and  they  are  principles 
by  which  we  can  stand  now  and  at  all  times  with 
perfect  security.  No  one  can  assail  us  on  such  a  plat- 
form as  this ;  it  is  the  platform  of  the  Constitution, 
and  upon  that  I  stand  and  mean  to  stand  whether 
elected  or  not.  [Applause.] 

One  word  more  regarding  the  merits  of  the  ques- 
tion. Not  only  are  these  our  principles — that  the 
Union  must  and  shall  be  preserved  ;  and  that  what  is 
done  for  its  preservation  is  well  done— but  they  are 
vital,  vital,  VITAL  !  If  we  do  not  carry  them  out  we 
are  undone.  Not  only  are  they  our  principles,  but 
they  are  the  only  principles  that  can  save  us  from  per- 
dition. Some  good  men,  especially  among  the  Seces- 


POLITICAL   EXPRESSIONS.  133 

sion  Democrats,  say,  "  Let  them  go ;  divide  the 
country ;  it  is  large  enough  for  two  republics."  Ah, 
my  fellow-citizens,  if  we  once  admit  that  doctrine  of 
dividing  the  country,  in  the  first  place  where  will  you 
draw  your  line  ?  Through  the  Potomac  ?  Along 
Mason  and  Dixon's  line  ?  On  the  south  side  of 
Virginia,  or  where  ?  In  the  next  place,  after  you  have 
drawn  it,  how  long  will  it  stay  drawn  ?  [A  voice, 
"  That's  it."]  And  in  the  third  place,  after  you  have 
made  one  division,  how  long  will  it  be  before  another 
and  another  will  follow  ?  No,  my  fellow-citizens,  we 
must  stand  by  this  Constitution  and  Union  as  the 
ark  of  republican  institutions  and  of  civil  freedom 
throughout  the  world.  [Applause.] 

In  other  countries  they  entertain  a  principle  of 
loyalty  to  their  sovereigns.  In  this  country,  our 
loyalty  has  all  been  directed  to  the  Constitution  made 
by  our  fathers,  by  mutual  concessions  and  mutual 
sacrifices— the  best  Constitution  in  the  world.  Loyalty 
to  the  Constitution  of  their  country  is  the  only  loyalty 
Americans  know.  Divide  the  republic,  and  this 
loyalty  that  has  grown  up  in  our  bosoms  from  infancy 
is  gone  ;  and  there  is  no  man  here  who,  if  the  republic 
was  divided,  would  not  go  about  the  streets  in  mourn- 
ing; for  the  great  bulwark  of  republicanism  in  the 
world  will  have  proved  a  failure.  Foreign  nations 
would  point  at  us  as  the  great  example  of  the  failure 
of  free  institutions ;  and  Americans  going  abroad, 
instead  of  being  respected,  would  be  pointed  at  and 
despised.  If  our  country  were  to  be  divided  and  our 
Constitution  and  institutions  to  fail,  I  would  not 
travel  in  Europe  any  more  than  I  would  travel  in  the 
realms  of  darkness.  [Applause.]  I  would  not  show 


134  MISCELLANEOUS  WRITINGS. 

my  head  there ;  I  would  be  ashamed  to  do  so  ;  and  I 
would  not  allow  an  Englishman  or  a  Frenchman  to 
enter  my  house.  [Laughter  and  applause.]  I  tell  you, 
my  friends,  that  if  we  give  up  this  heritage  of  ours 
we  give  up  the  most  precious  thing  that  has  ever 
been  planted  by  human  hands  upon  this  globe.  Shall 
we  give  it  up  ?  [No  !  No  !]  Shall  we  give  it  up  to  those 
Southern  traitors — aristocrats  who  have  no  love  for  free 
institutions,  and  who  are  determined  that  if  they  can- 
not rule  they  will  ruin  ?  Let  us  drive  them  into  the 
sea.  Let  us  re-establish  the  authority  of  the  Consti- 
tution all  over  the  land.  Let  us  do  it,  even  if  it 
involve  the  sacrifice  of  the  population  of  one-third  of 
the  States.  If  they  will  not  yield  to  the  Constitution 
and  laws  without  being  sacrificed,  let  them  be  sacri- 
ficed. I  tell  you  that  our  free  institutions  are  worth 
more  than  that  sacrifice.  Let  these  institutions  be 
transmitted  by  us  to  our  posterity  with  all  the  living 
vigor  with  which  we  received  them  from  our  fathers. 
[Applause.]  There  can  be  no  compromise  about  that, 
gentlemen.  I  do  not  say  this  because  I  hate  the 
Southern  people  or  their  institutions.  I  do  not  care 
a  straw  about  their  institutions,  comparatively.  That 
is  not  the  question  ;  it  is,  "  Shall  they  be  permitted  to 
destroy  our  Government  ?  "  [No  !  No  !] 

Now,  there  are  some  minor  questions  that  our 
opponents  have  talked  a  great  deal  about — the  habeas 
corpus,  the  act  of  confiscation  passed  by  Congress,  and 
the  President's  proclamation  of  emancipation.  I  have 
opinions  upon  all  these  subjects,  and  I  would  be  very 
free  to  express  them  if  I  were  able.  I  really  am  not 
able  now ;  but  I  may  have  an  opportunity  of  meeting 
you  upon  some  other  occasion  during  this  canvas,  and 


POLITICAL   EXPRESSIONS.  135 

of  saying  what  I  have  to  say  upon  these  matters. 
But  after  all  is  said  that  can  be  said,  what  miserable 
issues  are  they,  each  and  all,  compared  with  the  great 
issues  I  have  spoken  of. 

Oh,  gentlemen,  these  men  would  not  talk  so  much 
about  the  habeas  corpus,  and  the  President's  procla- 
mation, if  there  was  not  something  rotten  in  their 
bones.  [Applause.]  I  believe  in  the  habeas  corpus, 
and  I  do  not  know  whether  or  not  I  would  have  issued 
the  emancipation  proclamation  had  I  been  President ; 
but  the  President  must  know  a  great  deal  better  than 
I  do  the  reasons  for  it,  and  I  am  willing  to  take  for 
granted  that  he  does.  At  any  rate  I  am  not  going  to 
quarrel  with  him  about  it  just  now.  I  am  going  to 
stand  by  him  until  this  war  is  over ;  and  if  it  be  not 
over  when  he  goes  out  of  office  and  another  man  is 
put  in  his  place,  I  do  not  care  to  what  party  he 
belongs,  if  he  is  only  loyal  to  the  country  and  the 
Constitution,  I  will  stand  by  him  too.  [Applause.] 

I  know  that  in  our  particular  community  there 
are  many  respectable  men— men  who  formerly  belonged, 
many  of  them,  to  the  old  Whig  party,  God  bless  it ! 
[Cheers] — conservative,  good  men,  who  think  that  by 
making  a  peace  with  the  South  and  letting  them  go, 
trade  \vill  revive  and  things  will  go  on  better.  Now  I 
have  respect  for  these  men.  I  know  that  they  are  in 
a  false  position— that  they  are  influenced  in  a  great 
degree  by  their  pecuniary  interests.  Men  cannot  help 
this  ;  and  we  are  bound  to  have  charity  for  them.  I 
respect  these  men,  for  they  have  been  at  the  very  bot- 
tom of  the  prosperity  of  this  city  ;  but  their  principles 
I  do  not  agree  with  ;  and  if  there  are  any  of  those 
gentlemen  here  now  let  me  say  to  them  that  they  are 


is 


136  MISCELLANEOUS   WRITINGS. 

mistaken.  No  such  peace  with  the  South  will  ever 
bring  back  the  business  that  has  been  lost.  If  it  is 
ever  brought  back,  it  will  be  by  the  authority  of  and 
under  the  old  Constitution  and  the  old  flag.  [Great 
applause.]  Let  me  tell  you  that  the  South  is  dealing 
with  the  English  manufacturers  and  French  manufac- 
turers, and  they  will  whistle  at  our  Newark  manufac- 
turers under  any  peace  we  may  make  with  them. 

Let  me  say,  too,  that  the  prosperity  of  Newark 

not  bound  up  in  any  compromise  with  the 
Southern  States  or  in  any  unholy  peace  with  them, 
which  may  involve  a  division  of  the  country,  but  in 
the  cause  of  the  old  Constitution  and  the  old  flag. 
Let  us  re-establish  their  authority,  and  we  re-establish 
the  prosperity  of  Newark,  of  its  manufactures  and  its 
manufacturers.  [Loud  applause.] 

I  make  these  remarks  in  all  kindness  to  those  men  ; 
for  I  believe  them  to  be  honestly  mistaken ;  but  the 
mistake  is  made  in  such  a  grave  matter  that  I  am 
sorry  that  they  make  it— sorry  for  them  and  for  the 
city  in  which  they  live. 

In  order  to  be  accurate  with  regard  to  the  views  I 
hold  in  reference  to  the  present  contest,  I  cannot  do 
better  than  refer  to  the  resolutions  passed  by  the 
Convention  from  which  I  received  the  nomination.  I 
looked  at  these  resolutions  to  see  what  the  sentiments 
of  the  Administration  party  there  assembled  were ; 
and  I  will  now  read  one  or  two  of  them  : 

Resolved,  That  the  friends  of  the  National  Administration  in 
New  Jersey  desire,  first  of  all,  a  republican  form  of  government — free, 
great  and  strong  ;  [None  of  your  petty  little  republics  that  command 
no  respect  in  the  world  ;  but  a  republic,  free,  great  and  strong,  recom- 
mending free  institutions  throughout  the  earth  by  its  power  as  well 
as  its  freedom],  securing  to  its  citizens  the  blessings  of  peace,  and 
challenging  the  respect  of  the  world. 


POLITICAL   EXPRESSIONS.  137 

Mr.  Bradley  continued  reading  the  resolutions, 
which  were  published  at  the  time,  commenting  on  them 
seriatim  and  fully  endorsing  their  spirit.  He  then  pro- 
ceeded to  say : 

In  the  spirit  of  those  resolutions  I  say  to  the 
patriotic  members  of  the  Democratic  party  who  may 
hear  my  voice,  "  Come,  go  with  us,  and  it  shall  do 
thee  good  ;  "  for  our  only  object  is  to  restore  the  coun- 
try to  its  normal  condition,  to  restore  the  authority 
and  majesty  of  the  Constitution  and  the  laws.  If 
this  is  not  the  object  of  the  Administration  party, 
then,  as  I  have  already  said,  I  am  not  a  member  of  it. 
And  I  also  say  that  those  resolutions  tell  the  truth— 
that  in  this  struggle  no  man  can  be  neutral ;  he  must 
be  active  in  favor  of  the  Government  and  in  favor  of 
putting  down  the  rebellion,  or  he  must  be  opposed  to 
it.  Indifference  is  opposition.  Men  cannot  let  their 
arms  hang  by  their  sides  and  say,  "  Well,  I  hope 
the  national  arms  will  succeed  in  putting  down  the 
rebellion ;  but  I  have  a  great  many  reasons  why  I 
do  not  wish  to  take  any  part  in  this  contest."  A  man 
who  acts  thus  is  like  the  man  in  the  Scriptures,  of 
whom  it  is  said,  "  He  that  is  not  with  me  is  against 
me;  and  he  that  gathereth  not  with  me  scattereth 
abroad ;  "  for,  fellow-citizens,  this  cause  of  ours  is  a 
holy  cause— the  cause  of  civil  freedom— the  cause  of 
human  rights.  In  saying  this,  I  do  not  refer  to  the 
question  of  domestic  slavery  ;  I  am  speaking  of  the 
great  mission  of  this  country.  It  is  a  mission  of  civil 
freedom  and  free  institutions  ;  and  if  it  falls  they  fall. 
For  a  succession  of  ages — long  ages — will  it  and  they 
lie  in  the  dust  before  a  new  age  shall  arise  in  which 
freedom  can  again  plant  her  standards  successfully 
upon  the  mountains  and  the  plains  and  the  valleys  of 
the  earth.  [Loud  and  long  continued  applause.] 


SPEECH 

OF 

JOSEPH   P.  BRADLEY,  ESQ., 

THE   UNION   NOMINEE   FOR    CONGRESS, 
AT 

JERSEY  CITY,  TUESDAY  EVENING,  OCTOBER  28, 1862. 


Gentlemen  of  Hudson  County :— It  gives  me  great 
pleasure  to  have  the  opportunity  of  addressing  you 
upon  the  issues  of  this  campaign.  I  am  not  known 
to  many  of  you,  personally,  and  therefore  it  will,  of 
course,  be  a  satisfaction  to  you  to  see  me,  and  hear 
from  me  of  my  views  concerning  some  of  the  great 
issues  of  this  contest.  All  of  you  know  that  I 
was  not  eager  for  the  position  in  which  my  nomina- 
tion has  placed  me.  I  acceded  to  it  with  reluctance, 
and  only  from  a  strong  sense  of  duty.  I  was  especially 
reluctant  to  be  considered  a  candidate  because  the 
nomination,  according  to  usage,  belonged  to  Hudson, 
and  I  made  it  a  special  condition  that  I  was  not  to 
be  named  as  a  candidate  without  the  consent  of 
Hudson  County.  I  stood  to  that  condition  as  a 
matter  of  honor  between  the  different  parts  of  the 
district.  The  law  of  honor  on  such  subjects  is  imper- 
ative^ It  therefore  gave  me  great  pleasure  to  under- 
stand that  the  nomination  came  from  you,  and  I  con- 
sider that  this  fact  imposes  upon  me  peculiar  obliga- 


140  MISCELLANEOUS    WRITINGS. 

tions  toward  Hudson  county,  and  if  I  should  be  so  for- 
tunate, or  unfortunate,  a.»  the  case  may  be,  as  to  be 
elected,  I  shall  feel  under  special  obligations  to  regard  the 
interests  of  this  part  of  the  district.  I  hold  that  any 
man  should  be  proud  to  be  the  representative  of  this 
district.  There  is  no  district  in  the  country  which 
a  man  ought  to  be  more  proud  to  represent  than  the 
Fifth  District  of  New  Jersey.  Commerce  and  manu- 
factures concentre  here  their  most  important  interests, 
and  the  man  who  faithfully  discharges  the  duties  of 
its  representative  should  be  familiar  with  all  the  rami- 
fications and  wants  of  those  interests,  and  be  able  to 
represent  them  fully  ;  and  properly  to  discharge  that 
duty,  properly  to  represent  the  great  commercial  and 
manufacturing  interests  of  Jersey  City  and  of  Newark, 
one  of  the  greatest  centres  of  manufacturing  industry 
in  the  country,  I  feel  requires  more  ability  than  I 
possess,  and  I  shall  be  obliged  to  give  my  sole  and 
undivided  attention  to  my  duties,  in  order  to  do  what 
will  be  required  of  me. 

But  apart  from  the  local  interests  of  this  district, 
we  have  at  this  particular  period  of  our  history,  issues 
before  the  country  of  great  and  paramount  import- 
ance— national  issues,  than  which  none  more  important 
have  been  presented  to  the  American  people  since  they 
have  been  a  nation.  None,  I  say,  more  important. 

In  the  year  1788,  an  issue  was  presented  as  import- 
ant as  the  present,  but  never  one  of  greater  importance. 
Then,  the  question  was,  shall  we  adopt  the  noble 
Constitution  under  which  we  live,  which  should  consti- 
tute us  one  country,  one  nation,  one  people,  bound  up 
to  one  destiny  ?  Now  the  question  is  whether  we 
shall  remain  so. 


POLITICAL   EXPRESSIONS.  141 

Two  years  ago  to-day,  my  fellow-citizens,  the  sun 
in  his  daily  round  shone  on  no  people  so  contented,  so 
happy,  so  prosperous  as  ourselves.  The  husbandman 
tilled  his  fields  on  every  hillside  and  tended  his  flocks 
and  herds  in  every  valley  of  this  broad  land,  enjoying 
to  the  utmost  the  blessings  of  a  freedom  consistent 
with  the  good  order  of  society,  gathering  the  full 
and  rich  rewards  of  his  honest  toil.  No  poverty 
cursed  the  land.  Pauperism  scarcely  existed— we 
hardly  knew  what  it  -was.  Every  man  that  was  able 
to  work  and  willing  to  work  lived  like  a  prince. 
Everyone  enjoyed  the  utmost  freedom.  He  felt  he 
belonged  to  a  great  and  noble  country,  and  he  par- 
ticipated in  and  represented  a  portion  of  that  great- 
ness and  nobility.  An  American  citizen  was  then 
respected  by  all,  and  he  respected  himself  wherever  he 
went.  To-day,  if  an  American  should  travel  in  Europe 
and  name  himself  an  American,  he  would  be  a  jest 
and  a  by-word.  To-day,  instead  of  being  great  and 
happy,  and  prosperous,  we  are  divided,  rent  and  torn 
by  civil  war,  and  engaged  in  a  terrible  struggle  to 
save  the  nation  from  destruction,  to  preserve  our  insti- 
tutions, and  vindicate  the  authority  of  the  Constitution 
and  laws. 

What  would  our  Government  be  worth,  what 
would  our  Constitution  be  worth,  what  would  we  be, 
what  could  we  do,  if  we  become  a  divided  people  ? 
We  would  be  like  the  petty  States  of  Germany,  with- 
out power,  without  resources,  without  any  of  those 
attributes  of  a  nation  which  command  the  respect  of 
the  world,  and  entirely  at  the  mercy  and  control  of 
greater  and  stronger  powers.  And  who  shall  draw 
the  line  if  we  divide  ?  What  magician  with  his  wand 


142  MISCELLANEOUS   WRITINGS. 

shall  establish  a  perpetual  line  of  division  between 
one  part  of  the  country  and  the  other  ?  Where  shall 
it  be  ?  Along  the  Potomac,  south  of  Virginia,  south 
of  North  Carolina,  Mason  and  Dixon's  line— where  ? 
Once  admit  the  principle  of  division  and  how  soon 
will  we  have  to  draw  the  line  again  ?  How  soon 
would  the  West  separate  from  the  East,  Pennsylvania 
withdraw  from  New  York,  or  both  from  New  England  ? 
No,  gentlemen,  admit  for  a  moment  this  principle, 
and  we  have  no  country  at  all.  The  fabric  our  fathers 
raised  and  swore  to  defend,  that  moment  crumbles 
into  fragments— into  petty  States,  to  belong  to  which 
would  be  no  honor,  and  would  compel  no  respect. 

New  Jersey,  noble  little  State,  in  whose  fame  we  all 
feel  so  just  a  pride.  Who  in  our  own  land  is  not 
proud  to  call  himself  a  Jerseyman  ?  Yet  who,  abroad, 
would  think  to  call  himself  simply  a  Jerseyman  ?  We 
would  call  ourselves  AMERICANS,  and  in  this  name 
something  of  the  respect  would  attach  to  us  which 
formerly  attached  to  the  name  of  Roman  citizen. 
This  would  be  so  because  the  nations  have  learned  to 
respect  our  greatness  and  our  power.  These  con- 
stituted us  the  bulwark  of  freedom  and  free 
institutions  in  the  world.  It  was  this  which  gave 
us  respect  in  the  eyes  of  the  world.  Our  ships, 
our  commerce,  our  citizens,  were  all  honored  under 
the  broad  shield  of  our  nationality.  Take  away  this, 
and  all  power,  all  respect  is  gone.  We  become  nothing 
but  petty  States,  subject  to  the  beck  and  dictation  of 
every  great  power  in  the  world.  We  have  all  been 
brought  up  with  a  love  of  our  country— brought  up 
to  believe  that  it  is  the  best  country  in  the  world.  In 
this  country,  at  least,  we  thought  we  saw  the  true 


POLITICAL   EXPRESSIONS.  143 

and  final  success  of  republican  institutions.  This  love 
of  country  has  grown  in  our  bosoms  to  be  a  passion. 
In  other  lands,  there  is  loyalty  to  the  person  of  the 
sovereign ;  here  our  loyalty  fastens  upon  the  Consti- 
tution and  the  laws,  and  upon  our  free  institutions. 
If  these  are  destroyed,  this  sentiment  of  loyalty  would 
be  crushed,  and  we  should  go  about  the  streets  in 
mourning.  We  should  be  broken  down  as  a  nation, 
and  our  great  experiment  would  be  a  failure.  [Ap- 
plause.] Gentlemen,  these  sentiments  and  ideas  lie 
at  the  bottom  of  all  our  principles  and  instincts  as 
American  citizens — members  of  this  great  republic. 
They  lie  at  the  bottom  of  all  that  we  are  contending 
for  in  this  struggle.  The  man  who  does  not  feel  these 
sentiments  is  a  traitor  at  heart.  [Great  applause.] 

Now,  gentlemen,  who  are  the  authors  of  this 
wicked  rebellion  which  has  been  excited  in  the  Southern 
States  against  this  glorious  Government  ?  How  did 
it  arise  ?  Many  say  the  North  are  the  authors  of  it. 
[Mr.  Bradley  here  read  an  extract  from  a  speech  deliv- 
ered in  Newark  a  short  time  since  before  a  Democratic 
convention,  in  which  the  speaker  justified  secession, 
and  affirmed  that  the  nation  could  never  be  saved 
while  the  present  crew  are  aboard  the  ship  of  State, 
and  declaring  that  they  must  be  got  rid  of,  if  the  ship 
had  to  be  scuttled  and  sunk,  and  lowered  to  the  deck, 
and  the  crew  drowned  out.]  Mr.  Bradley  then  pro- 
ceeded : 

Now,  fellow-citizens,  I  do  not  justify  the  intemper- 
ate language  used  by  some  Northern  fanatics.  I  never 
did  justify  it.  I  have  always  thought  it  wrong  in 
principle.  I  am  speaking  the  sentiments  of  all  conser- 
vative men,  and  I  say  we  were  always  willing  to  con- 


144  MISCELLANEOUS   WRITINGS. 

cede  to  the  South  all  their  just  rights— the  entire  control 
and  regulation  of  their  own  affairs.  The  Constitution 
gives  us  no  power  to  meddle  with  them,  no  more  than 
it  gives  them  power  to  meddle  with  us.  The  Consti- 
tution was  founded  on  the  idea  that  the  States  should 
regulate  their  own  affairs. 

We  have  also  been  always  willing  to  concede  to 
them  a  fair  proportion  of  the  new  territory  which 
should  be  acquired  by  our  common  treasure  and  com- 
mon arms.  And  if  there  were  men  at  the  North  who 
disputed  these  rights,  they  were  few  in  number,  and 
did  not  represent  the  general  feelings  of  the  North. 
No,  gentlemen,  it  was  no  invasion  of  Southern  rights 
by  the  North  that  produced  this  wicked  rebellion. 
Never,  never.  It  was  the  devil  in  the  hearts  of  the 
Southern  ringleaders— the  determination  if  they  could 
not  rule  to  ruin.  That  was  the  cause.  The  Southern 
people  themselves  were  not  in  favor  of  this  rebellion. 
Two  years  ago  they  would  have  voted  down  secession 
if  they  could  have  expressed  their  honest  sentiments 
at  the  ballot-box.  But  they  were  coerced  and  deceived, 
and  the  truth  was  kept  from  them  until  they  have 
become  mad  in  this  great  war  against  the  Constitution 
and  the  country— perfectly  infuriated.  This  conspiracy 
has  been  ripening  for  thirty  years  among  Southern 
politicians.  They  foresaw  that  power  would  depart 
from  their  grasp,  and  they  concocted  this  rebellion. 
It  was  Calhoun  and  his  compeers  who  were  at  the 
bottom  of  it.  They  are  the  guilty  men  whose  lives 
ought  to  have  paid  the  forfeit.  General  Jackson— God 
bless  him — ought  to  have  hung  Calhoun,  and  then  the 
seed  would  have  been  destroyed  which  has  grown  up 
and  ripened  to  such  a  fearful  harvest. 


POLITICAL   EXPRESSIONS.  145 

Now,  fellow-citizens,  in  view  of  the  enormity  of  this 
rebellion,  in  view  of  this  great  effort  to  war  against 
and  destroy  our  Government,  what  is  the  duty  of  the 
Government— the  country— our  duty  ?  To  put  down 
the  rebellion  cost  what  it  may.  [Great  Applause.] 
That's  the  great  principle  which  animates  us  to-day. 
That's  the  pole  star  of  our  political  principles.  The 
rebellion  must  be  put  down.  Nothing  else  must  be 
thought  of.  I  see  nothing  else,  can  see  nothing  else. 
It  glares  in  my  eye  continually — the  Union  must  and 
shall  be  preserved.  [Enthusiastic  applause.]  You 
may  talk  of  mistakes,  of  official  acts  which  are  not 
strictly  according  to  law— about  violating  this  or  that 
clause  of  the  Constitution.  It  may  be  so.  If  so,  we 
can  punish  them  for  it  after  awhile  ;  but  for  the  pres- 
ent, I  repeat  it,  we  have  nothing  to  do  but  to  put 
down  the  rebellion,  and  hold  up  the  President's  hands 
whilst  he  is  trying  to  do  it.  [Applause.] 

Fellow-citizens,  you  want  to  know  what  my  pol- 
itics are ;  there  they  are.  They  are  not  the  growth 
of  a  day — they  have  been  growing  up  in  me  for  forty- 
nine  years ;  they  are  the  outcropping  of  my  whole 
nature.  I  have  grown  up  from  childhood  to  love  our 
glorious  Constitution  and  Union,  and  that  love  has 
become  a  passion  of  my  nature. 

I  have  seen  in  a  speech  made  not  far  from  this 
place  the  sentiment  that  we  must  be  kind  and  conciliat- 
ing to  our  Southern  "brethren";  that  we  must  not 
deal  harshly  with  them,  etc. 

Gentlemen,  up  to  the  time  that  the  war  came,  up 
to  the  time  that  the  Rebellion  became  a  fact,  I  could 
endorse  that  sentiment  with  all  my  heart.  I  could 
go  with  any  man  or  set  of  men  in  effecting  a  com- 


146  MISCELLANEOUS   WRITINGS. 

promise  with  the  South.  I  did  join,  in  fact,  in  Decem- 
ber, 1860,  in  an  endeavor  to  get  up  a  compromise 
which  would  have  satisfied  the  Southern  people.  I 
spent  several  weeks  in  Washington,  giving  my  whole 
time  to  this  matter,  giving  all  my  heart  and  energies 
to  it,  because  of  my  love  for  the  Union,  and  my  hatred 
of  blood.  I  thought  then  an  honorable  compromise 
could  be  effected,  and  I  could  then  say  "  Southern 
brethren  "  with  all  my  heart.  But  when  they  became 
rebels  and  refused  compromise  and  flung  concilia- 
tion in  our  face  and  endeavored  to  destroy  our  coun- 
try, they  were  my  brethren  no  longer.  A  rebel,  a 
traitor,  is  a  criminal,  like  a  murderer,  an  must  be  put 
down.  If  they  come  in  and  submit  to  the  authority 
of  the  Constitution,  I  can  then  again  hail  them  as 
brothers ;  but  not  till  then.  Until  then  they  are 
enemies,  and  to  be  dealt  with  as  enemies.  The  plea 
that  we  cannot  do  this  or  that  in  a  war  against 
them  is  absurd.  We  might  as  well  say  we  could  not 
do  such  things  in  a  war  against  England  or  France. 
They  have  repudiated  the  Constitution,  and  are  we 
under  the  same  obligations  to  them  that  we  would 
be  if  no  war  existed  ? 

We  are  bound  by  the  Constitution  assuredly  ;  but 
the  Constitution  has  in  it  powers  relating  to  war,  and 
for  the  suppression  of  insurrection  and  rebellion,  as  well 
as  other  powers  ;  and  we  have  the  power  to  take  the 
same  steps  to  put  them  down  as  we  have  to  carry  on 
a  foreign  war,  and  in  the  exercise  of  those  powers  we 
are  just  as  much  within  the  Constitution  as  we  are 
in  returning  their  fugitive  slaves  in  time  of  peace. 

There  is  nothing  in  the  Constitution  which  limits 
or  controls  the  conduct  of  the  war.  There  is  nothing 


POLITICAL  EXPRESSIONS.  147 

but  the  law  of  nations.  And  even  in  regard  to  that, 
the  law  of  nations  in  respect  to  a  foreign  war  differs 
from  that  in  regard  to  a  domestic  war.  We  have  a 
right  to  do  things  in  a  domestic  war  which  we 
would  not  have  in  a  foreign  war.  There  is  not  a 
nation  in  the  world  which  does  not  confiscate  the 
property  of  rebels.  It  is  part  of  the  common  law. 
This  right  to  confiscate  extends  in  this  country 
with  regard  to  lands,  only  to  the  lifetime  of  the 
guilty  person.  Therefore,  real  estate  cannot  be  confis- 
cated beyond  the  lifetime  of  the  guilty  parties.  With 
that  restriction,  the  power  to  confiscate  is  absolute, 
and  without  that  restriction  it  is  absolute  in  every 
other  country  in  the  world.  In  a  foreign  war  we 
should  not  possess  this  right.  We  could  not  confiscate 
the  property  of  the  citizens  of  France,  as  they  would 
owe  obedience  and  allegiance  to  their  own  govern- 
ment. But  rebels,  who  fight  against  their  own  gov- 
ernment, have  not  that  plea.  The  law  of  the  civilized 
world  says  that  the  property  of  rebels  may  be  confis- 
cated. So  that,  while  we  are  bound  by  the  law  of 
nations,  it  is  the  law  of  nations  as  applied  to  a 
rebellion. 

Now,  whether  confiscation  is  or  is  not  expedient, 
is  another  question.  I  only  say  it  is  constitutional— 
L  e.,  it  is  not  unconstitutional. 

It  is  not  for  me,  gentlemen,  to  discuss  this  or  that 
particular  measure  of  the  Administration.  It  is  not 
for  me  to  sit  in  judgment  in  matters  of  such  minor 
importance.  If  the  line  of  authority  has  been  over- 
stepped we  must  not  stop  now  to  punish  the  guilty. 
Now  we  must  put  down  the  rebellion,  and  restore  the 
authority  of  the  Constitution  and  laws. 


148  MISCELLANEOUS    WRITINGS. 

Mr.  Bradley  then  referred  to  the  duty  of  every 
citizen  to  support  the  Government,  instancing  the 
example  of  the  Federalists  in  the  war  of  1812,  who 
opposed  the  war  violently,  and  yet  for  the  most  part, 
when  the  war  actually  begun,  stepped  gallantly  for- 
ward to  lend  their  aid.  They  went  forth  like  men, 
and  fought  side  by  side  with  Democrats,  and 
those  who  then  stood  back,  and  let  their  hands  hang 
idly  by  their  sides,  were  forever  branded  as  traitors  to 
their  country.  [A  voice,  "  Buchanan."] 

When  the  country  is  actually  engaged  in  a  war,  we 
must  stand  by  the  country.  If  the  Government  does 
wrong,  even,  I  say,  stand  by  it,  and  see  the  war 
through,  and  attend  to  the  wrong  afterwards.  That's 
what  w^e  are  bound  to  do  now.  Party  issues  are  to 
be  discarded.  We  should  discard  every  issue  but  one, 
and  that  is— our  country  must  be  saved  and  the 
authority  of  the  Constitution  vindicated.  Mr.  Brad- 
ley then  referred  to  the  possibility  of  England  and 
France  interfering  in  this  war.  If  they  do,  said  he, 
we  shall  have  a  more  solemn  duty  than  ever  before 
to  perform. 

The  question  arises,  what  will  be  our  duty  then  ? 
Have  we  ever  injured  them,  or  interfered  with  them 
during  all  their  wars  ?  Then  what  right  have  they  to 
interfere  with  us  ?  Neither  the  laws  of  God  or  of 
nations  (except  as  concocted  by  themselves),  give 
them  any  right  to  interfere,  and  if  they  do,  it  will  be 
because  they  hate  our  institutions  and  will  be  glad 
to  see  their  downfall.  We  are  not  called  upon  to 
declare  a  policy  in  advance,  yet  I,  for  one,  would  let 
those  nations  know  that  they  can't  interfere  with  us 
with  impunity  [great  applause]  ;  that  there  will  be 


POLITICAL    EXPRESSIONS.  149 

blows  to  take  as  well  as  to  give  ;  that  there  are 
domestic  dissensions  and  discontent  in  other  countries 
as  well  as  ours.  I  would  let  them  know  in  advance 
that  if  they  dare  stir  up  the  lion  in  his  lair  they  may 
feel  the  weight  of  his  paw.  I  do  not  say  what  policy 
should  be  pursued,  but  I  will  say  that  these  are  my 
strong  convictions.  Now,  gentlemen,  some  of  these 
remarks  of  mine  may  not  be  those  of  a  politician.  I 
talk  straight  out  and  straight  on.  You  have  my  views, 
you  have  them  frankly,  fully.  Our  opponents  are  full 
of  the  wisdom  of  the  serpent,  if  not  the  harmlessness 
of  the  dove.  They  profess  to  be  in  favor  of  the  war, 
yet  we  see  in  their  councils,  in  their  most  secret  coun- 
cils, men  whom  we  know,  from  their  antecedents,  to  be 
secessionists  at  heart.  What  they  mean  I  don't  know, 
but  I  do  know  that  those  who  are  heartily  for  aiding 
the  Administration  in  carrying  on  the  war  can't  be  far 
wrong. 

I  deprecate  party  politics  in  a  time  like  this.  I 
would  say  to  all  patriotic  men  of  every  party,  let  us 
unite  in  this  great  and  holy  cause  until  peace  shall  be 
restored  on  the  only  basis  on  which  it  can  permanently 
stand— the  unity  of  the  whole  country  under  the  old 
Constitution  and  the  old  flag.  [Loud  cheers.] 


THE  CONSTITUTIONAL  AMENDMENT. 


LETTER 

FROM 

JOSEPH   P.  BRADLEY,  ESQ., 

OF  NEW  JERSEY, 

TO 

MR.    CHARLES    KNAP, 

ON  THB 

QUESTION    OF     THE     NUMBER     OF     STATES    REQUISITE   TO 
RATIFY  AN  AMENDMENT  TO  THE  CONSTITUTION. 

NOTE.— The  publication  of  the  following  letter  at  this  time  calls  for  no 
apology.  The  subject  is  so  important  in  itself,  and  the  views  contained  in 
the  letter  impressed  me  as  so  conclusive,  that  it  seemed  to  me  eminently 
proper  to  give  them  publicity,  and,  at  my  urgent  request,  the  writer  has 
given  his  consent  to  such  disposition  of  it.  C.  KNAP. 

WASHINGTON,  February  20,  1865. 


WASHINGTON,  February  18,  1865. 
MY  DEAR  KNAP  :  Agreeably  to  your  request,  I 
proceed  to  jot  down  the  substance  of  the  views 
expressed  in  our  conversation  to-day,  in  relation  to 
the  number  of  States  required  to  ratify  the  Constitu- 
tional amendment  abolishing  slavery.  I  apprehend 
you  will  find  very  little  that  is  new,  as  most 
right-thinking  men,  who  have  given  attention  to 
the  subject,  have  undoubtedly  come  to  the  same 
conclusion.  But  the  persistency  with  which  certain 
leading  journals  and  politicians  detract  from  the 
just  .authority  of  the  Government  and  the  validity 
of  its  proceedings  as  being  unconstitutional,  on  the 
plea  that  certain  integral  and  essential  elements 


152  MISCELLANEOUS   WRITINGS. 

of  the  Confederacy  (as  they  love  to  term  it)  are 
not  represented,  renders  it  proper,  and  it  is  high 
time,  that  all  such  heresies  should  be  put  down  by  the 
American  people.  While  we  are  at  the  work  of  restor- 
ing and  reinaugurating  the  truth,  which  has  so  long 
been  concealed  in  the  deep  well  of  Virginia  abstrac- 
tions, we  should  strangle  each  head  of  that  hydra  of 
error  which  has  led  our  country  to  the  verge  of 
destruction.  If,  from  motives  of  expediency  or  clem- 
ency, we  should  conclude,  in  any  case,  to  waive  the 
truth,  we  ought,  at  least,  to  recognize  it,  and  place  it 
upon  its  own  proper  pedestal.  A  different  course 
will  only  lead  to  misunderstandings  and  embarrass- 
ments hereafter.  I  consider  the  doctrine  that  a  State, 
by  withdrawing  from  the  Union,  can  produce  any 
deficiency  in  the  "quorum,"  or  other  derangement 
of  the  organic  functions,  so  as  to  render  constitution- 
ally nugatory  any  action  or  proceeding  of  the  Govern- 
ment, quite  as  repugnant  to  all  just  ideas  of  constitu- 
tional law  as  is  the  doctrine  of  secession  itself.  And, 
therefore,  I  entirely  concur  in  the  conclusion  arrived  at 
by  Mr.  Sumner  in  the  joint  resolution  offered  by  him 
in  the  Senate  on  the  4th  instant,  that  the  rebellious 
States  are  not  to  be  counted  in  estimating  the  number 
of  States  of  which  three-fourths  are  required  to  ratify 
and  validate  the  amendment  in  question.  Whether  it 
would  or  would  not  be  politic  to  count  them  is  a 
different  question,  which  I  do  not  discuss. 

Congress  having,  by  a  vote  of  two-thirds  of  both 
Houses,  proposed  this  amendment  to  the  legislatures 
of  the  several  States,  the  fifth  article  of  the  Constitu- 
tion declares  that,  "  when  ratified  by  the  legislatures 
of  three-fourths  of  the  several  States,"  it  will  be  valid 


THE   CONSTITUTIONAL   AMENDMENT.  153 

as  a  part  of  the  Constitution.  The  question  is,  What 
are  "  the  several  States  "  intended  in  that  article  ?  I 
contend  that  they  are  those,  and  only  those,  States 
which  are  connected  with  the  Union  as  States  when 
the  amendment  is  passed  upon. 

It  is  certainly  clear  that  the  Constitution  did  not 
refer  merely  to  the  thirteen  States  which  were  then 
organized,  and  in  confederate  relations  with  each  other. 
It  might  have  been  only  nine  of  those  States,  had  only 
nine  adopted  the  Constitution ;  and  as  the  power  to 
admit  new  States  is  expressly  given,  it  may  be  a  hun- 
dred, if  so  many  shall  at  any  time  be  formed  under  the 
Constitution.  Otherwise  the  object  of  the  clause, 
namely,  to  secure  a  large  preponderance  of  the  body 
politic  in  favor  of  an  amendment  before  giving  it  A^alid- 
ity,  would  be  frustated.  If  three-fourths  of  the  original 
thirteen  were  meant,  ten  of  the  old  States  could  at 
any  time  ratify  an  amendment  which  would  bind,  per- 
chance, a  hundred  States.  This  could  not  have  been 
the  intent.  The  clause,  therefore,  must  have  respect  to 
the  States  which,  in  the  sense  of  the  Constitution, 
are,  or  shall  be,  States  whenever  an  amendment  is 
proposed,  whether  they  include  all  or  do  not  include 
any  of  the  original  thirteen. 

This  point  being  established,  the  next  proposition, 
equally  clear  and  demonstrable,  is,  that,  although 
there  may  be  and  is  such  a  thing  as  actual  secession, 
there  is  no  such  thing  as  a  right  of  secession,  any 
more  than  there  is  a  right  of  rebellion  or  revolution. 
The  word  "right"  indicates  a  liberty  of  action  or 
possession  guaranteed  by  the  social  law,  that  is,  the 
law  which  binds  civil  society  together.  But  revolution 
is  an  abrogation  of  the  pre-existing  bonds  of  civil 


154  MISCELLANEOUS   WRITINGS. 

society.  The  very  provision  for  making  amendments 
to  the  Constitution  was  intended  to  obviate  every 
pretence  for  revolution.  Now,  by  adopting  the  Con- 
stitution, the  people  of  the  United  States  erased  and 
abrogated  all  State  jurisdiction  in  the  matters  of  sover- 
eignty embraced  within  the  scope  of  that  instrument, 
and,  in  so  many  words,  declared  :  "  This  Constitution, 
and  the  laws  of  the  United  States  made  in  pursuance 
thereof,  and  all  treaties  made,  etc.,  shall  be  the  supreme 
law  of  the  land."  These  portions  of  the  general 
sovereignty  were  lodged  in  the  general  Government, 
not  as  a  fief  to  be  holden  by  any  sort  of  tenure  of  or 
from  the  State  sovereignties,  but  as  the  undoubted 
prerogative  and  allodium  of  the  whole  people  of  the 
United  States,  independent,  outside  of,  and  above  the 
State  sovereignties  ;  so  that,  in  very  truth,  the  Con- 
stitution and  laws  of  the  Federal  Government  became, 
in  their  nature,  as  they  were  thus  declared  to  be, 
"  the  supreme  law  of  the  land"  After  this  no  State 
had  or  could  have  any  right  to  secede.  To  do  so 
would  be  to  set  at  naught  or  at  defiance  "  the  supreme 
law  of  the  land,"  which  no  State  can  repeal,  and  over 
which  no  State  has  control.  Within  the  constitutional 
scope,  which  embraces  all  the  most  important  branches 
of  national  sovereignty,  such  as  the  foreign  relations, 
war,  peace,  army,  navy,  controversies  between  the 
States  themselves,  commerce,  citizenship,  money, 
weights  and  measures,  etc.,  there  is  but  one  country, 
one  "  land,"  and  one  "  supreme  law  of  the  land."  Just 
as  well  might  any  county  in  a  State  claim  a  right  to 
secede  from  the  State,  as  for  a  State  to  claim  the  right 
to  secede  from  the  Union.  The  attempt  in  either  case 
would  be  an  attempt  to  disrupt  the  bands  of  civil 


THE   CONSTITUTIONAL   AMENDMENT.  155 

society  as  organized  in  that  community  of  which  the 
seceding  body  is  a  part.  A  State  is  a  limited  and 
subordinate  sovereignty— limited  and  subordinate, 
because  destitute  of  those  transcendent  powers  which 
more  particularly  characterize  nationality.  Those 
powers  have,  by  the  ultimate  source  of  political 
power— a  source  superior  to  that  from  which  any  State 
power  is  derived,  namely,  the  whole  people  of  the  United 
States— been  lodged  in  a  separate  and  superior  gov- 
ernment. And  hence,  if  a  State  could  lawfully  secede, 
it  would  only  carry  with  it  legitimately  those  subordi- 
nate branches  of  sovereignty  which  it  possesses,  and 
which  are  not  lodged  in  the  general  Government.  It 
is  true,  countries  and  peoples,  formerly  one,  do  some- 
times violently  separate  from  each  other.  But  it  is 
revolution  when  they  do  so  ;  and  it  is  revolution  here. 
But  while  there  is  no  such  thing  as  a  right  of 
secession,  and  while,  in  all  national  respects,  as  before 
said,  we  are  one  people,  and  this  is  one  country,  yet 
in  the  eye  of  the  Constitution,  the  States  for  many 
purposes  have  separate  existence  and  status  as  such. 
The  members  of  the  House  of  Representatives  are 
elected  by  the  people  of  the  several  States — no  con- 
gressional district  being  formed  from  two  States ; 
each  State  is  entitled  to  a  certain  number  of  Repre- 
sentatives and  Senators ;  each  State  owes  certain 
constitutional  duties  to  the  other  States,  and  to  the 
general  Government;  and  the  general  Government 
owes  certain  duties  to  the  States,  one  of  which 
is  to  guarantee  to  every  one  of  them  a  republican 
form  of  government,  and  to  protect  them  from  inva- 
sion and  domestic  violence.  The  States,  therefore, 
having  a  separate  existence,  and  being  clothed  with  the 


156  MISCELLANEOUS    WRITINGS. 

forms  of  political  sovereignty,  and  acting  in  all  domestic 
and  internal  matters  as  ,  independent  communities, 
they  can,  de  facto,  secede,  and  by  their  actual  secession 
cause  a  vacancy  in  the  associated  circle  of  communities 
forming  the  United  States,  which  is  calculated  to 
embarrass  a  fair  exposition  of  Constitutional  rights 
and  duties,  both  of  the  general  and  State  Govern- 
ments. This  is  the  difficulty  to  be  solved. 

Now,  suppose  a  single  State  in  the  national  body 
poli tic— Maryland,  for  example— should,  through  all 
its  organisms,  popular,  legislative,  executive,  judicial, 
secede  from  the  Union,  and  repudiate  the  Constitution, 
and  forcibly  prevent  the  exercise  of  any  Federal 
authority  in  her  territory,  what  would  be  the  status 
of  that  State  ?  The  territory  of  the  State  would,  of 
course,  remain  where  it  was  in  spite  of  secession,  and 
the  inhabitants  would  remain  upon  the  territory. 
But  the  State  does  not  consist  merely  of  the  one  nor 
of  the  other,  nor  of  both,  without  a  certain  political 
organization.  If,  for  example,  all  the  inhabitants  of 
that  State,  with  their  entire  political  organization, 
should  remove  to  the  Western  plains,  and  there  con- 
tinue their  social  and  political  life,  they  would  no 
longer  be  the  State  of  Maryland  ;  and  on  the  other 
hand,  without  inhabitants  and  a  certain  organized 
community,  the  territory  of  Maryland  would  cease  to 
be  a  State.  It  would  be  the  territory  which  was 
once  called  the  State  of  Maryland,  but  it  would  cease 
to  be  such.  Yet  it  would  not  be  out  of  the  United 
States,  nor  free  from  the  laws  of  the  United  States ; 
nor  would  it  be  so  by  the  supposed  act  of  secession. 

With  this  preliminary    observation,  I  ask  again, 
what  would  be  the  status  of  Maryland  after  thus  seced- 


THE    CONSTITUTIONAL   AMENDMENT.  157 

ing  from  the  Union  ?  What  would  be  the  status  of  her 
territory  and  its  inhabitants  ?  Are  they  any  longer  a 
"  State1'  within  the  meaning  of  the  Constitution? 
They  may  be  de  facto  a  State,  in  the  popular  sense  of 
the  term  ;  but  are  they  a  State  in  the  Constitutional 
sense  ?  Are  they  entitled  to  the  rights  which  the 
Constitution  secures  to  "  the  several  States  ?"  When 
a  citizen  of  Maryland,  for  example,  should  come  into 
any  other  State,  would  he  be  entitled,  any  longer,  to  all 
the  privileges  and  immunities  of  its  own  citizens  ?  Do 
we  concede  this  privilege  now,  to  citizens  of  Alabama  ? 
May  they  come  within  our  lines,  and  take  rooms  at 
our  hotels,  and  trade  and  converse  with  our  people  ? 
And  in  the  hypothetical  case  of  Maryland,  would  the 
general  Government  any  longer  be  bound  to  guarantee 
to  her  a  republican  form  of  government  ?  Would  the 
other  States  be  bound  to  return  her  fugitives  from  jus- 
tice and  her  fugitives  from  service  ?  Would  they  be 
bound  to  give  full  faith  and  credit  to  her  legislative 
acts  and  judicial  proceedings  ?  Would  the  Supreme 
Court  be  bound  to  hear  and  decide  her  controversies 
with  the  other  States  ?  If  Maryland,  under  such  cir- 
cumstances, should  send  two  persons  to  the  Senate  of 
the  United  States,  and  demand  that  they  should  sit  in 
that  body,  would  it  be  allowed  ?  To  ask  these  ques- 
tions is  to  answer  them.  It  would  be  absurd  to 
answer  them  in  the  affirmative.  It  is  an  intuitive 
principle,  growing  out  of  the  very  nature  of  right, 
and  obligation,  and  law,  and,  therefore,  a  fundamental 
maxim  of  all  codes,  that  he  who  violates,  repudiates, 
and  contemns  a  contract,  cannot  claim  its  collateral 
advantages.  If  it  is  a  lease  of  land,  he  loses  all  claim 
to  the  land.  If  it  is  an  agreement,  he  can  claim  no 


158  MISCELLANEOUS   WRITINGS. 

benefit  from  the  agreement.  As  respects  the  bond 
repudiated,  he  is  an  alien,;  he  has  no  rights,  and  no 
claims,  except  upon  the  clemency  of  the  other  party. 
So  he  who  repudiates  and  contemns  the  social  bond, 
and  wages  war  against  mankind,  is  a  pirate,  and  is 
entitled  to  the  protection  of  no  law,  for  the  very  rea- 
son that  he  has  repudiated  all  law.  And  so,  in  the 
case  supposed,  Maryland,  by  repudiating  and  trampling 
upon  the  bond  of  our  national  social  compact,  would 
be  no  longer  entitled  to  any  of  the  benefits  or  any  of 
the  considerations  of  that  compact.  She  puts  herself 
out  of  the  pale  of  the  Constitution,  and  shuts  her 
mouth  to  all  objections  arising  out  of  her  wrongful 
position. 

Then  what,  in  relation  to  the  Federal  Constitution 
and  Government,  would  be  her  condition  and  status  ? 
Though  she  has  seceded  in  fact,  she  cannot  secede  in 
law  ;  and  yet  having  seceded  in  fact,  she— that  is,  her 
people— are  entitled  to  no  regards  as  "  a  State."  And 
there  lies  her  territory  in  the  very  heart  of  the  country, 
cutting  it  in  twain.  What  are  the  logical  results  of 
her  condition  ? 

Are  we  told  that  we  must  reduce  her  people  to 
obedience  ?  This  the  general  Government  unquestion- 
ably may  do,  and  should  do.  But  still  the  question 
recurs,  what  is  the  Constitutional  status  of  Maryland 
and  its  inhabitants  in  the  meantime  ?  And  suppose 
they  will  not  be  reduced  to  obedience  ?  They  prefer 
extermination  ;  they  fight  to  the  last  ditch,  and  die  in 
it ;  or  they  are  expelled  and  banished.  What  then  ? 
Will  the  territory  belong  to  nobody  ?  May  England 
people  it  again  with  colonists  ?  May  France  sieze  it 
as  virgin  territory,  and  hold  it  by  right  of  occupancy  ? 


THE    CONSTITUTIONAL    AMENDMENT.  159 

Has  the  United  States  no  right  of  political  dominion 
in  it  ?  It  seems  to  me  perfectly  clear  that  the  Govern- 
ment of  the  United  States  would  be  entitled  to  invite 
settlers  to  replant  it.  If  it  might  do  this,  would  these 
settlers  be  a  State  perforce,  and  without  the  consent 
of  the  United  States  Government  ?  Is  a  particular 
tract  of  land  necessarily  a  State  because  a  State  was 
once  organized  upon  it  ?  This  we  have  seen  is  not  so. 
If,  then,  new  settlers,  placed  upon  the  territory  by  the 
general  Government,  could  not  act  as  a  State  without 
the  consent  of  that  Government,  could  a  people  who 
have  lost  all  rights  as  a  State  under  the  Constitution, 
and  who,  by  the  strong  arm  of  the  Government,  have 
been  reduced  to  obedience,  claim  it  as  a  right  to  act 
again  as  a  State  on  that  same  territory  ?  Could  they 
claim  to  resume  and  proceed  with  all  the  functions  of 
a  State,  as  though  nothing  had  happened  ? 

These  questions  lead  unerringly  to  the  true  solution 
of  the  difficulty. 

The  territory  of  Maryland  is  a  part  of  that  coun- 
try, that  "  land  "  over  which  the  people  of  the  United 
States  have  constituted  the  Federal  Government,  by 
that  Constitution  which  they  have  declared  to  be  "  the 
supreme  law  of  the  land."  This  territory  cannot  be 
wrenched  from  its  subjection  to  the  authority  of  that 
Government.  There  is,  there  can  be,  no  right  of  seces- 
sion. It  is  a  Constitutional  solecism.  But  if  the 
people  of  the  State,  acting  through  their  State  organ- 
ization, and  as  a  State,  have  forfeited  all  claim  to  be 
considered  as  a  State — as  in  the  case  supposed  they 
clearly  would— then  it  follows  (and  no  other  conclu- 
sion can  be  logically  drawn)  that  the  general  Govern- 
ment has  a  right  to  occupy  the  obnoxious  territory  by 


160  MISCELLANEOUS   WRITINGS. 

its  armies,  and  in  all  other  ways,  and  to  impose  such 
condition  of  habitancy  therein  as  it  sees  fit  to  do,  and 
as  it  would  have  a  right  to  do  in  relation  to  any  con- 
quered or  purchased  territory.  Any  other  conclusion 
would  be  subversive  of  the  Government  itself,  by 
putting  it  into  the  power  of  any  State,  by  indirection, 
to  stop  the  wheels  of  government,  and  thus  practically 
to  exert  the  right  of  secession,  which  it  is  admitted 
does  not  exist.  The  recreant  State  by  seceding, 
renounces  her  rights  and  status  as  a  State,  and  the 
Government  takes  her  at  her  word  ;  but  also  adheres 
to  and  enforces  that  other  relation  in  which  her  terri- 
tory stands  to  the  country  and  Constitution,  as  an 
integral  portion  of  the  territory  of  the  United  States. 

It  follows  as  a  corollary,  that  a  seceding  State, 
which  repudiates  and  disclaims  the  Constitution,  is  not 
a  State  within  the  meaning  of  the  Constitution,  but 
has  ceased  to  be  such ;  and,  therefore,  that  its  action 
cannot  in  any  manner  clog  the  wheels  or  embarrass 
the  movements  of  the  Government.  The  territory  of 
the  United  States  remains  the  same  ;  there  is  only  one 
State  the  less  within  that  territory.  The  organization 
of  the  various  departments  of  the  Government, 
executive,  legislative,  judicial,  is  not  affected  nor 
changed.  Quorums  of  representative  bodies,  such  as 
the  Senate  and  House  of  Representatives,  are  not 
destroyed  or  rendered  impracticable.  The  Government 
moves  serenely  on ;  and  if  the  people  of  a  particular 
State  will  not  have  the  Government  to  rule  over  them, 
they  simply  lose  their  status  as  a  State  in  the  eye  and 
within  the  meaning  of  the  Constitution,  and  remain 
subject  to  the  clemency  of  the  Government. 

As  a  matter  of  policy  and  expediency,  it  might, 
and  probably  would  be  advisable,  in  such  a  case,  to 


THE   CONSTITUTIONAL   AMENDMENT.  161 

receive  the  erring  sister  back  again  as  a  State  as  soon 
as  she  gets  tired  of  secession.  And  the  most  expedient 
manner  of  doing  this  might,  and  perhaps  would  be 
that  indicated  by  the  enunciations  of  General  Sherman, 
namely,  by  silently  allowing  her  representatives  to 
take  their  seats  in  the  Congress,  whenever  Congress  is 
satisfied  of  her  returning  loyalty,  and  quietly  setting 
the  wheels  of  Government  in  motion  again  in  her 
territory.  Such  a  course  taken  by  the  two  Houses  of 
Congress  would  probably  be  as  valid  a  process  for 
readmission  as  a  joint  resolution  was  in  the  case  of 
Texas  for  the  original  admission  of  a  State ;  for  it 
would  be  tantamount  to  a  joint  resolution. 

But  be  this  as  it  may,  in  strict  right,  and  as  a 
matter  of  Constitutional  law,  the  seceding  State, 
while  in  a  state  of  actual  secession,  cannot  be  reckoned 
as  a  State  for  the  purpose  of  claiming  any  rights  or 
interposing  any  obstacles  to  the  action  of  the  Govern- 
ment or  people  of  the  United  States,  or  for  any  other 
Constitutional  purposes. 

To  admit  for  a  moment  that  the  wrongful  secession 
of  a  State,  or  a  number  of  States  can  embarrass  the 
proceedings  required  to  amend  the  Constitution,  or  to 
perform  any  function  of  the  Government,  would  be  to 
enable  disloyal  and  rebellious  States  to  deprive  the 
people  of  loyal  and  faithful  States  of  their  most  valued 
privileges.  One  of  the  most  valuable  privileges  secured 
to  the  people  of  the  United  States  is  the  right  to 
amend  their  Constitution  and  Government  by  peace- 
able means— a  right  which  few  other  nations  enjoy  ; 
and  hence  their  bloody  revolutions  for  redress  of  griev- 
ances. Englishmen  secured  this  right  by  the  revolution 
of  1688,  and  highly  do  they  prize  it.  The  progress  of 


162  MISCELLANEOUS    WRITINGS. 

ideas  in  the  world,  and  the  steady  advance  of  civiliza- 
tion, require  gradual  changes  in  the  organic  law. 
But,  if  seceding  States  are  to  be  included  in  the  roll-call 
of  States  when  an  amendment  is  proposed,  the  perma- 
nent secession  of  ten  States  would  forever  present  a 
bar  to  any  amendment  being  made,  and  their  tempor- 
ary secession  would  temporarily  suspend  the  Consti- 
tutional prerogatives  of  the  Government  and  people. 

We  should  not  for  a  moment  listen  to  any  such 
absurd  proposition.  If  a  State  secedes,  she,  by  her 
own  act,  ceases  to  be  a  State,  but  her  territory  does 
not  (except  by  force  of  successful  rebellion)  cease  to 
be  a  portion  of  the  territory  of  the  United  States. 
Her  readmission  as  a  State  cannot  be  claimed  as  a 
right,  but  must  depend  upon  the  authority  and  consent 
of  the  Federal  Government. 

It  follows  as  a  further  corollary,  that  any  amend- 
ment of  the  Constitution  requiring  the  approval  of 
a  majority  of  the  States,  is  valid  when  approved  by 
a  majority  of  those  States  which  adhere  to  the  Govern- 
ment. If  others  have  put  it  out  of  their  own  power 
to  co-operate  in  the  matter,  either  by  approval  or 
rejection,  it  is  their  own  fault  and  their  own  misfor- 
tune, and  not  that  of  the  country  or  of  the  loyal 
States.  And  when  they  come  back  again  as  States, 
if  they  ever  do,  they  will  be  bound  by  what  the  Gov- 
ernment and  people  of  the  United  States  have  done  in 
their  absence;  and  they  can  never  plead  their  own 
wrong  as  a  bar  to  the  validity  of  such  action.  They 
might  as  well  complain  that  the  amendment  was  not 
presented  to  them  for  their  ratification  when  they  had 
armies  in  the  field  to  prevent  any  intercourse  with 
them !  For,  if  they  are  to  be  reckoned  as  States, 


THE   CONSTITUTIONAL   AMENDMENT.  163 

whose  approval  or  rejection  is  necessary,  they  could 
logically  argue  that  a  failure  to  propose  to  them  a 
contemplated  amendment  would  be  a  fatal  objection 
to  its  validity. 

At  the  present  time  eleven  States  are  in  a  state  of 
secession  de  facto  (or  rebellion,  if  that  expression  is 
preferred),  and  twenty-five  States  remain  true  to  the 
Government  and  Constitution.  Therefore,  the  ratifi- 
cation of  the  amendment  in  question  by  nineteen  States 
not  in  secession  will  make  it  valid  as  a  part  of  the  Con- 
stitution. This  is  the  clear  dictate  of  Constitutional 
law. 

I  do  not  know  that  the  present  exigencies  of  the 
country  render  this  view  of  the  subject  practically 
important.  Both  Houses  of  Congress  virtually  assumed 
Jt  as  the  true  one  when  they  declared  that  a  majority 
of  the  Senators  and  Representatives  elected  to  each 
House  respectively  was  sufficient  to  form  a  quorum ; 
thus  obviating  one  of  the  difficulties  which  a  contrary 
doctrine  would  create.  The  great  desideratum  of  the 
present  hour  is  to  insure  the  success  of  our  arms  in 
quelling  the  rebellion.  That  once  quelled,  there  is  little 
doubt  that  three-fourths  of  all  the  States,  including 
those  which  have  no  Constitutional  claim  to  be  treated 
as  such,  but  which  will  undoubtedly  be  welcomed 
back  to  their  allegiance,  will  readily  be  found  to 
approve  of  the  proposed  amendment.  The  recruiting 
of  the  army  with  stalwart  and  honest  men  is  at  present 
the  great  and  absorbing  duty  of  the  nation. 

I  am,  as  ever,  yours, 

JOSEPH  P.  BRADLEY. 
CHARLES  KNAP,  Esq., 

Washington. 


OPINIONS  AND  REMARKS 

OF 

MR.  COMMISSIONER    BRADLEY 


IN    THE   CONSULTATIONS  OP    THE 


ELECTORAL  COMMISSION 


UPON    THE 


ELECTORAL  VOTES  OF   FLORIDA,  LOUISIANA  AND  OREGON. 


The  following  opinions  and  remarks  have  been  somewhat  abbreviated, 
and  repetition  of  the  same  arguments  in  the  different  cases  has  been 
omitted. 

THE  FLORIDA  CASE. 

In  this  case  the  objectors  to  the  Certificate  No.  1 
(which  was  authenticated  by  Governor  Stearns,  and 
contained  the  votes  of  the  Hayes  electors)  proposed 
to  prove  by  the  papers  accompanying  the  certificates, 
that  a  writ  of  quo  warranto  had  been  issued  from  a 
district  court  in  Florida  against  the  Hayes  electors  on 
the  6th  day  of  December,  before  they  gave  their  votes 
for  President  and  Vice-President,  which  on  January 
26,  1877,  resulted  in  a  judgment  against  them,  and  in 
favor  of  the  Tilden  electors  ;  also  an  act  of  the  Legis- 
lature passed  in  January,  in  favor  of  the  Tilden  elec- 
tors ;  and  also  certain  extrinsic  evidence  described  by 
the  counsel  of  the  objectors  as  follows  : 

"-Fifthly.  The  only  matters  which  the  Tilden 
electors  desire  to  lay  before  the  Commission  by  evi- 
dence actually  extrinsic  will  now  be  stated. 


166  MISCELLANEOUS   WRITINGS. 

"  I.  The  Board  of  State  Canvassers,  acting  on 
certain  erroneous  views  when  making  their  canvass, 
by  which  the  Hayes  electors  appeared  to  be  chosen, 
rejected  wholly  the  returns  from  the  county  of  Manatee 
and  parts  of  returns  from  each  of  the  following  coun- 
ties :  Hamilton,  Jackson,  and  Monroe. 

"  In  so  doing  the  said  State  board  acted  without 
jurisdiction,  as  the  Circuit  and  Supreme  Courts  in 
Florida  decided.  It  was  by  overruling  and  setting 
aside  as  not  warranted  by  law  these  rejections,  that 
the  courts  of  Florida  reached  their  respective  conclu- 
sions that  Mr.  Drew  was  elected  Governor,  that  the 
Hayes  electors  were  usurpers,  and  that  the  Tilden 
electors  were  duly  chosen. 

"  II.  Evidence  that  Mr.  Humphreys,  a  Hayes 
elector,  held  office  under  the  United  States. 

The  question  was  argued  as  to  the  admissibility 
of  this  evidence. 


SUBSTANCE  OF  JUSTICE  BRADLEY'S  OPINION,  DELIVERED 
FEBRUARY  9,  1877. 

I  assume  that  the  powers  of  the  Commission  are 
precisely  those,  and  no  other,  which  the  two  Houses 
of  Congress  possess  in  the  matter  submitted  to  our 
consideration  ;  and  that  the  extent  of  that  power  is 
one  of  the  questions  submitted.  This  is  my  interpre- 
tation of  the  act  under  which  we  are  organized. 

The  first  question,  therefore,  is,  whether  and  how 
far,  the  two  Houses,  in  the  exercise  of  the  special 
jurisdiction  conferred  on  them  in  the  matter  of  count- 
ing the  electoral  votes,  have  power  to  inquire  into  the 
validity  of  the  votes  transmitted  to  the  President  of 


OPINIONS   IN    ELECTORAL    COMMISSION.  167 

the  Senate.  Their  power  to  make  any  inquiry  at  all 
is  disputed  by,  or  on  behalf  of,  the  President  of  the 
Senate  himself.  But,  I  think  the  practice  of  the  Gov- 
ernment, as  well  as  the  true  construction  of  the  Con- 
stitution, have  settled,  that  the  powers  of  the  President 
of  the  Senate  are  merely  ministerial,  conferred  upon 
him  as  a  matter  of  convenience  as  being  the  presiding 
officer  of  one  of  the  two  bodies  which  are  to  meet  for 
the  counting  of  the  votes,  and  determining  the  election. 
He  is  not  invested  with  any  authority  for  making  any 
investigation  outside  of  the  joint  meeting  of  the  two 
Houses.  He  cannot  send  for  persons  or  papers.  He 
is  utterly  without  the  means  or  the  power  to  do  any- 
thing more  than  to  inspect  the  documents  sent  to  him  ; 
and  he  cannot  inspect  them  until  he  opens  them  in 
presence  of  the  two  Houses.  It  would  seem  to  be 
clear,  therefore,  that  if  any  examination  at  all  is  to  be 
gone  into,  or  any  judgment  is  to  be  exercised  in  relation 
to  the  votes  received,  it  must  be  performed  and  exer- 
cised by  the  two  Houses. 

Then  arises  the  question,  how  far  can  the  two 
Houses  go  in  questioning  the  votes  received  without 
trenching  upon  the  power  reserved  to  the  States 
themselves  ? 

The  extreme  reticence  of  the  Constitution  on  the 
subject  leaves  wide  room  for  inference.  Each  State 
has  a  just  right  to  have  the  entire  and  exclusive  con- 
trol of  its  own  vote  for  the  Chief  Magistrate  and  head 
of  the  republic,  without  any  interference  on  the  part 
of  any  other  State,  acting  either  separately  or  in 
congress  with  others.  If  there  is  any  State  right  of 
which  it  is  and  should  be  more  jealous  than  of  any 
other,  it  is  this.  And  such  seems  to  have  been  the 


168  MISCELLANEOUS   WRITINGS. 

spirit  manifested  by  the  framers  of  the  Constitution. 
This  is  evidenced  by  the  terms  in  which  the  mode  of 
choosing  the  President  and  Yice-President  is  expressed. 
"Each  State  shall  appoint— in  such  manner  as  the 
legislature  thereof  may  direct — a  number  of  electors 
equal  to  the  whole  number  of  Senators  and  Represent- 
atives to  which  the  State  may  be  entitled  in  the  Con- 
gress : — but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector.  The  electors 
shall  meet  in  their  respective  States  and  vote  by  ballot, 
etc."  Almost  every  clause  here  cited  is  fraught  with 
the  sentiment  to  which  I  have  alluded.  The  appoint- 
ment and  mode  of  appointment  belong  exclusively  to 
the  State.  Congress  has  nothing  to  do  with  it,  and 
no  control  over  it,  except  that,  in  a  subsequent  clause, 
Congress  is  empowered  to  determine  the  time  of 
choosing  the  electors,  and  the  day  on  which  they  shall 
give  their  votes,  which  is  required  to  be  the  same  day 
throughout  the  United  States.  In  all  other  respects 
the  jurisdiction  and  power  of  the  State  is  controlling 
and  exclusive  until  the  functions  of  the  electors  have 
been  performed.  So  completely  is  Congressional  and 
Federal  influence  excluded  that  not  a  member  of  Con- 
gress or  an  officer  of  the  general  Government  is 
allowed  to  be  an  elector.  Of  course,  this  exclusive 
power  and  control  of  the  State  is  ended  and  deter- 
mined when  the  day_fixed  by  Congress  for  voting  has 
arrived,  and  the  electors  have  deposited  their  votes 
and  made  out  the  lists  and  certificates  required  by 
the  Constitution.  Up  to  that  time  the  whole  proceed- 
ing (except  the  time  of  election)  is  conducted  under 
State  law  and  State  authority.  All  machinery, 


OPINIONS  IN   ELECTORAL   COMMISSION.  169 

•whether  of  police,  examining  boards  or  judicial  tribu- 
nals, deemed  requisite  and  necessary  for  securing  and 
preserving  the  true  voice  of  the  State  in  the  appoint- 
ment of  electors,  is  prescribed  and  provided  for  by  the 
State  itself  and  not  by  Congress.  All  rules  and  regu- 
lations for  the  employment  of  this  machinery  are  also 
within  the  exclusive  province  of  the  State.  All  over 
this  field  of  jurisdiction  the  State  must  be  deemed  to 
have  ordained,  enacted,  and  provided  all  that  it  con- 
siders necessary  and  proper  to  be  done. 

This  being  so,  can  Congress,  or  the  two  Houses, 
institute  a  scrutiny  into  the  action  of  the  State 
authorities,  and  sit  in  judgment  on  what  they  have 
done  ?  Are  not  the  findings  and  recorded  determina- 
tions of  the  State  board,  or  constituted  authorities, 
binding  and  conclusive,  since  the  State  can  only  act 
through  its  constituted  authorities  ? 

But,  it  is  asked,  must  the  two  Houses  of  Congress 
submit  to  outrageous  frauds  and  permit  them  to  pre- 
vail without  any  effort  to  circumvent  them  ?  Certainly 
not,  if  it  is  within  their  jurisdiction  to  inquire  into  such 
frauds.  But  there  is  the  very  question  to  be  solved. 
Where  is  such  jurisdiction  to  be  found  ?  If  it  does  not 
exist,  how  are  the  two  Houses  constitutionally  to 
know  that  frauds  have  been  committed  ?  It  is  the 
business  and  the  jurisdiction  of  the  State  to  prevent 
frauds  from  being  perpetrated  in  the  appointment  of 
its  electors,  and  not  the  business  or  jurisdiction  of  the 
Congress.  The  State  is  a  sovereign  power  within  its 
own  jurisdiction,  and  Congress  can  no  more  control  or 
review  the  exercise  of  that  jurisdiction  than  it  can 
that  of  a  foreign  government.  That  which  exclusively 


170  MISCELLANEOUS   WRITINGS. 

belongs  to  one  tribunal  or  government  cannot  be 
passed  upon  by  another.  The  determination  of  each 
is  conclusive  within  its  own  sphere. 

It  seems  to  me  to  be  clear,  therefore,  that  Congress 
cannot  institute  a  scrutiny  into  the  appointment  of 
electors  by  a  State.  It  would  be  taking  it  out  of  the 
hands  of  the  State,  to  which  it  properly  belongs. 
This  never  could  have  been  contemplated  by  the  people 
of  the  States  when  they  agreed  to  the  Constitution. 
It  would  be  going  one  step  further  back  than  that 
instrument  allows.  Whilst  the  two  Houses  of  Con- 
gress are  authorized  to  canvass  the  electoral  votes,  no 
authority  is  given  to  them  to  canvass  the  election  of 
the  electors  themselves.  To  revise  the  canvass  of  that 
election,  as  made  by  the  State  authorities,  on  the  sug- 
gestion of  fraud,  or  for  any  other  cause,  would  be 
tantamount  to  a  recanvass. 

The  case  of  elections  of  Senators  and  Representa- 
tives is  different.  The  Constitution  expressly  declares 
that  "  each  House  shall  be  the  judge  of  the  elec- 
tions, returns  and  qualifications  of  its  own  mem- 
bers." No  such  power  is  given,  and  none  ever  would 
have  been  given  if  proposed,  over  the  election  or 
appointment  of  the  Presidential  electors.  Again, 
whilst  the  Constitution  declares  that  "the  times, 
places  and  manner  of  holding  elections  of  Senators 
and  Representatives  shall  be  prescribed  in  each  State 
by  the  legislature  thereof,"  it  adds,  "  but  the  Congress 
may  at  any  time  by  law  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  Senators." 
No  such  power  is  given  to  Congress  to  regulate  the 
election  or  appointment  of  Presidential  electors.  Their 
appointment,  and  all  regulations  for  making  it,  and 
the  manner  of  making  it,  are  left  exclusively  with  the 
States. 


OPINIONS  IN   ELECTORAL   COMMISSION.  171 

This  want  of  jurisdiction  over  the  subject  makes  it 
clear  to  my  mind  that  the  two  Houses  of  Congress 
cannot  institute  any  scrutiny  into  the  appointment  of 
Presidential  electors,  as  they  may  and  do  in  reference 
to  the  election  of  their  own  members.  The  utmost 
they  can  do  is  to  ascertain  whether  the  State  has 
made  an  appointment  according  to  the  form  prescribed 
by  its  laws. 

This  view  receives  corroboration  from  the  form  of 
a  bill  introduced  into  Congress  in  1800  for  prescribing 
the  mode  of  deciding  disputed  elections  of  President 
and  Vice-President,  and  which  was  passed  by  the 
Senate.  It  proposed  a  grand  committee  to  inquire 
into  the  Constitutional  qualifications  of  the  persons 
voted  for  as  President  and  Yice-President,  and  of  the 
electors  appointed  by  the  States,  and  various  other  mat- 
ters with  regard  to  their  appointment  and  transactions; 
but  it  contained  a  proviso,  in  which  both  Houses 
seem  to  have  concurred,  that  no  petition  or  exception 
should  be  granted  or  allowed  which  should  have  for 
its  object  to  draw  into  question  the  number  of  votes 
on  which  any  elector  had  been  elected. 

This  bill  was  the  proposition  of  the  Federal  party 
of  that  day,  which,  as  is  well  known,  entertained 
strong  views  with  regard  to  the  power  of  the  Federal 
Government  as  related  to  the  State  governments.  It 
was  defeated  by  the  opposition  of  the  Republican 
side,  as  being  too  great  an  interference  with  the  inde- 
pendence of  the  States  in  reference  to  the  election  of 
President  and  Vice-President.  And  taken  even  as  the 
Federal  view  of  the  subject,  it  only  shows  what  mat- 
ters were  regarded  as  subject  to  examination  under 
the  regulation  of  law,  and  not  that  the  two  Houses 


172  MISCELLANEOUS   WRITINGS. 

of  Congress,  when  assembled  to  count  the  votes,  could 
do  the  same  without  the  aid  of  legislation.  The  bill 
was  rather  an  admission,  that  legislation  was  neces- 
sary in  order  to  provide  the  proper  machinery  for 
making  extrinsic  inquiries. 

It  is  unnecessary  to  enlarge  upon  the  danger  of 
Congress  assuming  powers  in  this  behalf  that  do  not 
clearly  belong  to  it.  The  appetite  for  power  in  that 
body,  if  indulged  in  without  great  prudence,  would 
have  a  strong  tendency  to  interfere  with  that  freedom 
and  independence  which  it  was  intended  the  States 
should  enjoy  in  the  choice  of  the  national  Chief  Magis- 
trate, and  to  give  Congress  a  control  over  the  subject 
which  it  was  intended  it  should  not  have. 

As  the  power  of  Congress,  therefore,  does  not 
extend  to  the  making  of  a  general  scrutiny  into  the 
appointment  of  electors,  inasmuch  as  it  would  thereby 
invade  the  right  of  the  States,  so  neither  can  it  draw 
in  question,  nor  sit  in  judgment  upon,  the  determina- 
tion and  conclusion  of  the  regularly  constituted 
authorities  or  tribunals  appointed  by  the  laws  of  the 
States  for  ascertaining  and  certifying  such  appoint- 
ment. 

And  here  the  inquiry  naturally  arises,  as  to  the 
manner  in  which  the  electors  appointed  by  a  State  are 
to  be  accredited.  What  are  the  proper  credentials  by 
which  it  is  to  be  made  known  who  have  been 
appointed.  Obviously  if  no  provision  of  law  existed 
on  the  subject,  the  proper  mode  would  be  for  the 
Governor  of  the  State,  as  its  political  head  and  chief, 
through  whom  its  acts  are  made  known,  and  by 
whom  its  external  intercourse  is  conducted,  to  issue 
such  credentials.  But  we  are  not  without  law  on  the 


OPINIONS   IN    ELECTORAL    COMMISSION.  173 

subject.  The  Constitution,  it  is  true,  is  silent ;  but 
Congress,  by  the  act  of  1792,  directed  that  "  it  shall 
be  the  duty  of  the  executive  of  each  State  to  cause 
three  lists  of  the  names  of  the  electors  of  such  State 
to  be  made  and  certified  and  to  be  delivered  to  the 
electors  on  or  before  the  day  on  which  they  are 
required  to  meet ";  and  one  of  these  certificates  is 
directed  to  be  annexed  to  each  of  the  certificates  of  the 
votes  given  by  the  electors.  And  if  it  should  be  con- 
tended that  this  enactment  of  Congress  is  not  binding 
upon  the  State  executive,  the  laws  of  Florida,  in  the 
case  before  us,  impose  upon  the  Governor  of  that 
State  the  same  duty.  I  think,  therefore,  that  it  can- 
not be  denied  that  the  certificate  of  the  Governor  is  the 
proper  and  regular  credential  of  the  appointment  and 
official  character  of  the  electors.  Certainly  it  is  at 
least  prima  facie  evidence  of  a  very  high  character. 

But  the  Houses  of  Congress  may  undoubtedly 
inquire  whether  the  supposed  certificate  of  the  execu- 
tive is  genuine ;  and  I  think  they  may  also  inquire 
whether  it  is  plainly  false,  or  whether  it  contains  a 
clear  mistake  of  fact,  inasmuch  as  it  is  not  itself  the 
appointment,  nor  the  ascertainment  thereof,  but  only 
the  certificate  of  the  fact  of  appointment.  Whilst  it 
must  be  held  as  a  document  of  high  nature,  not  to  be 
lightly  questioned,  it  seems  to  me  that  a  State  ought 
not  to  be  deprived  of  its  vote  by  a  clear  mistake  of 
fact  inadvertently  contained  in  the  Governor's  certifi- 
cate, or  (if  such  a  case  may  be  supposed)  by  a  willfully 
false  statement.  It  has  not  the  full  sanctity  which 
belongs  to  a  court  of  record,  or  which,  in  my  judgment, 
belongs  to  the  proceedings  and  recorded  acts  of  the 
final  board  of  canvassers. 


174-  MISCELLANEOUS   WRITINGS. 

In  this  case,  it  is  not  claimed  that  the  certificate  of 
the  Governor  contains  any  mistake  of  fact,  or  that  it 
is  willfully  false  and  fraudulent.  It  truly  represents 
the  result  of  the  State  canvass,  and  if  erroneous  at  all, 
it  is  erroneous  because  the  proceedings  of  the  canvass- 
ing board  were  erroneous  or  based  on  erroneous  prin- 
ciples and  findings. 

It  seems  to  me  that  the  two  Houses  of  Congress, 
in  proceeding  with  the  count,  are  bound  to  recognize 
the  determination  of  the  State  Board  of  Canvassers 
as  the  act  of  the  State,  and  as  the  most  authentic 
evidence  of  the  appointment  made  by  the  State ;  and 
that  whilst  they  may  go  behind  the  Governor's  certifi- 
cate, if  necessary,  they  can  only  do  so  for  the  purpose 
of  ascertaining  whether  he  has  truly  certified  the  results 
to  which  the  board  arrived.  They  cannot  sit  as  a 
court  of  appeals  on  the  action  of  that  board. 

The  law  of  Florida  declares  as  follows  : 

On  the  thirty-fifth  day  after  the  holding  of  any  general  or  special 
election  for  any  State  officer,  member  of  the  legislature,  or  Repre- 
sentative'in  Congress,  or  sooner,  if  the  returns  shall  have  been  received 
from  the  several  counties  wherein  elections  shall  have  been  held,  the 
Secretary  of  State,  Attorney-General  and  the  Comptroller  of  Public 
Accounts,  or  any  two  of  them,  together  with  any  other  member  of  the 
Cabinet  who  may  be  designated  by  them,  shall  meet  at  the  office  of 
the  Secretary  of  State,  pursuant  to  notice  to  be  given  by  the  Secretary 
of  State,  and  form  a  Board  of  State  Canvassers,  and  proceed  to  can- 
vass the  returns  of  said  election  and  determine  and  declare  who  shall 
have  been  elected  to  any  such  office  or  as  such  member,  as  shown  by 
such  returns. 

The  Governor's  certificate  is  prima  facie  evidence 
that  the  State  canvassers  performed  their  duty. 
Indeed,  it  is  conceded  by  the  objectors  that  they  made 
a  canvass  and  certified  or  declared  the  same.  It  is 
not  the  failure  of  the  board  to  act,  or  to  certify  and 


OPINIONS   IN    ELECTORAL    COMMISSION.  175 

declare  the  result  of  their  action,  but  an  illegal  can- 
vass, of  which  they  complain.  To  review  that  can- 
vass, in  my  judgment,  the  Houses  of  Congress  have 
no  jurisdiction  or  power. 

The  question  then  arises,  whether  the  subsequent 
action  of  the  courts  or  legislature  of  Florida  can 
change  the  result  arrived  at  and  declared  by  the  Board 
of  State  Canvassers,  and  consummated  by  the  vote  of 
the  electors,  and  the  complete  execution  of  their  func- 
tions ? 

If  the  action  of  the  State  Board  of  Canvassers 
were  a  mere  statement  of  a  fact,  like  the  certificate  of 
the  Governor,  and  did  not  involve  the  exercise  of 
decision  and  judgment,  perhaps  it  might  be  contro- 
verted by  evidence  of  an  equally  high  character.  Like 
the  return  to  a  habeas  corpus,  which  could  not  in  for- 
mer times  be  contradicted  by  parol  proof,  but  might 
be  contradicted  by  a  verdict  or  judgment  in  an  action 
for  a  false  return. 

Looking  at  the  subject  in  this  point  of  view,  I  was, 
at  one  time,  inclined  to  think  that  the  proceedings  on 
quo  warranto  in  the  Circuit  Court  of  Florida,  if  still 
in  force  and  effect,  might  be  sufficient  to  contradict  the 
finding  and  determination  of  the  board  of  canvassers — 
supposing  that  the  court  had  jurisdiction  of  the  case. 
But  the  action  of  the  board  involved  more  than  a  mere 
statement  of  fact.  It  was  a  determination,  a  decision 
quasi  judicial.  The  powers  of  the  board  as  defined 
by  the  statute  which  created  it  are  expressed  in  the 
following  terms  :  "  They  shall  proceed  to  canvass  the 
returns  of  said  election  and.  determine  and  declare  who 
shall  have  been  elected  to  any  office";  and  "  if  any  such 
returns  shall  be  shown  or  shall  appear  to  be  so  irregu- 


176  MISCELLANEOUS   WRITINGS. 

lar,  false,  or  fraudulent  that  the  board  shall  be  unable 
to  determine  the  true  vote  for  any  such  officer  or  mem- 
ber, they  shall  so  certify,  and  shall  not  include  such 
return  in  their  determination  and  declaration."  This 
clearly  requires  quasi  judicial  action.  To  controvert 
the  finding  of  the  board,  therefore,  would  not  be  to 
correct  a  mere  statement  of  fact,  but  to  reverse  the 
decision  and  determination  of  a  tribunal.  The  judg- 
ment on  the  quo  warranto  was  an  attempted  reversal 
of  this  decision,  and  the  rendering  of  another  decision. 
If  the  court  had  had  jurisdiction  of  the  subject-matter, 
and  had  rendered  its  decision  before  the  votes  of  the 
electors  were  cast,  its  judgment,  instead  of  that  of  the 
returning  board,  would  have  been  the  final  declaration 
of  the  result  of  the  election.  But  its  decision  being 
rendered  after  the  votes  were  given,  it  cannot  have 
the  operation  to  change  or  affect  the  vote,  whatever 
effect  it  might  have  in  a  future  judicial  proceeding  in 
relation  to  the  Presidential  election.  The  official  acts 
of  officers  de  facto  until  they  are  ousted  by  judicial 
process  or  otherwise  are  valid  and  binding. 

But  it  is  a  grave  question  whether  any  courts  can 
thus  interfere  with  the  course  of  the  election  for  Presi- 
dent and  Vice-President.  The  remarks  of  Mr.  Justice 
Miller  on  this  subject  are  of  great  force  and  weight. 

The  State  may,  undoubtedly,  provide  by  law  for 
reviewing  the  action  of  the  board  of  canvassers,  at 
any  time  before  the  electors  have  executed  their  func- 
tions. It  may  provide  any  safeguard  it  pleases  to 
prevent  or  counteract  fraud,  mistake,  or  illegality  on 
the  part  of  the  canvassers.  The  legislature  may  pass 
a  law  requiring  the  attendance  of  the  Supreme  Court, 
or  any  other  tribunal,  to  supervise  the  action  of  the 


OPINIONS  IN   ELECTORAL   COMMISSION.  177 

board,  and  to  reverse  it  if  wrong.  But  no  such  pro- 
vision being  made,  the  final  action  of  the  board  must 
be  accepted  as  the  action  of  the  State.  No  tampering 
with  the  result  can  be  admitted  after  the  day  fixed  by 
Congress  for  casting  the  electoral  votes,  and  after  it 
has  become  manifest  where  the  pinch  of  the  contest  for 
the  Presidency  lies,  and  how  it  may  be  manipulated. 

I  am  entirely  clear  that  the  judicial  proceedings  in 
this  case  were  destitute  of  validity  to  affect  the  votes 
given  by  the  electors.  Declared  by  the  board  of  can- 
vassers to  have  been  elected,  they  were  entitled,  by 
virtue  of  that  declaration,  to  act  as  such  against  all 
the  world  until  ousted  of  their  office.  They  proceeded 
to  perform  the  entire  functions  of  that  office.  They 
deposited  their  votes  in  a  regular  manner,  and  on  the 
proper  and  only  day  designated  for  that  purpose,  and 
their  act  could  not  be  annulled  by  the  subsequent  pro- 
ceedings on  the  quo  warranto,  however  valid  these 
might  be  for  other  purposes.  When  their  votes  were 
given,  they  were  the  legally  constituted  electors  for 
the  State  of  Florida. 

The  Supreme  Court  of  Florida  said,  in  the  Drew 
case,  it  is  true,  that  the  board  of  canvassers  exceeded 
their  jurisdiction,  and  that  their  acts  were  absolutely 
void.  In  this  assertion  I  do  not  concur ;  and  it  was 
not  necessary  to  the  judgment,  which  merely  set  aside 
the  finding  of  the  board  and  directed  a  new  canvass. 
Under  the  Florida  statute  the  board  had  power  to 
cast  out  returns.  They  did  so.  The  court  thought 
they  ought  to  have  cast  out  on  a  different  principle 
from  that  which  they  adopted.  This  was  at  most 
error,  not  want  or  excess  of  jurisdiction.  They  cer- 
tainly acted  within  the  scope  of  their  power,  though 


178  MISCELLANEOUS  WRITINGS'. 

they  may  have  acted  erroneously.  This  is  the  most 
that  can  be  said  in  any  event ;  and  of  this  the  Houses 
of  Congress  cannot  sit  ip  judgment  as  a  court  of 
appeal. 

The  question  is  asked,  whether  for  no  cause  what- 
ever the  declaration  and  certificate  of  the  board  of 
canvassers  can  be  disregarded— as,  if  they  should  certify 
an  election  when  no  election  had  been  held,  and  other 
extreme  cases  of  that  sort  ?  I  do  not  say  that  a  clear 
and  evident  mistake  of  fact  inadvertently  made,  and 
admitted  to  have  been  made,  by  the  canvassers  them- 
selves, or  that  such  a  gross  fraud  and  violation  of  duty 
as  that  supposed,  might  not  be  corrected,  or  that  it 
might  not  affect  the  validity  of  the  vote.  On  that 
subject,  as  it  is  not  necessary  in  this  case,  I  express  no 
opinion.  Such  extreme  cases,  when  they  occur,  gener- 
ally suggest  some  special  rule  for  themselves  without 
unsettling  those  general  rules  and  principles  which  are 
the  only  safe  guides  in  ordinary  cases.  The  difficulty 
is,  that  the  two  Houses  are  not  made  the  judges  of 
the  election  and  return  of  Presidential  electors. 

I  think  no  importance  is  to  be  attached  to  the  acts 
performed  by  the  board  of  canvassers  after  the  sixth 
day  of  December ;  nor  to  the  acts  of  the  Florida  legis- 
lature in  reference  to  the  canvass.  In  my  judgment 
they  are  all  unconstitutional  and  void.  To  allow  a 
State  legislature  in  any  way  to  change  the  appoint- 
ment of  electors  after  they  have  been  elected  and 
given  their  votes,  would  be  extremely  dangerous.  It 
would,  in  effect,  make  the  legislature  for  the  time  being 
the  electors,  and  would  subvert  the  design  of  the  Con- 
stitution in  requiring  all  the  electoral  votes  to  be 
given  on  the  same  day. 


OPINIONS  IN    ELECTORAL   COMMISSION.  179 

My  conclusion  is  that  the  validity  of  the  first  cer- 
tificate cannot  be  controverted  by  evidence  of  the 
proceedings  had  in  the  courts  of  Florida,  by  9170  war- 
ranto  ;  and  that  said  evidence  should  not  be  received. 

It  is  further  objected  that  Humphreys,  one  of  the 
Hayes  electors,  held  an  office  of  trust  and:  profit  under 
the  Government  of  the  United  States  at  the  time  of 
the  general  election,  and  at  the  time  of  giving  his 
vote.  I  think  the  evidence  of  this  fact  should  be 
admitted.  Such  an  office  is  a  Constitutional  disquali- 
fication. I  do  not  think  it  requires  legislation  to 
make  it  binding.  What  may  be  the  effect  of  the  evi- 
dence when  produced,  I  am  not  prepared  to  say.  I 
should  like  to  hear  further  argument  on  the  subject 
before  deciding  the  question. 

[It  being  shown  that  Humphreys  resigned  his  office 
before  the  election,  the  question  of  ineligibility  became 
unimportant.  Justice  Bradley  held,  however,  that  the 
Constitutional  prohibition,  that  no  member  of  Con- 
gress, or  officer  of  the  Government,  should  be  appointed 
an  elector  is  only  a  form  of  declaring  a  disqualification 
for  the  electoral  office,  and  does  not  have  the  effect  of 
annulling  the  vote  given  by  one  who,  though  disquali- 
fied, is  regularly  elected,  and  acts  as  an  elector ;  likening 
it  to  the  case  of  other  officers  de  facto  J 


180  MISCELLANEOUS   WRITINGS. 

II.— THE  LOUISIANA  CASE. 

The  objections  to  the  votes  of  the  electors  certified 
by  Kellogg,  as  Governor  of  Louisiana,  being  condensed, 
are  in  substance  as  follows  : 

FIRST. — That  the  government  of  Louisiana  is  not 
republican  in  form. 

SECOND. — That  Kellogg  was  not  Governor. 

THIRD.— That  at  the  time  of  the  election,  in  Novem- 
ber last,  there  was  no  law  of  the  State  directing  the 
appointment  of  electors. 

FOURTH.— That  so  much  of  the  election  law  which 
was  in  force  as  relates  to  the  returning  board  was 
unconstitutional  and  void. 

FIFTH.— That  the  board  was  not  constituted 
according  to  the  law  ;  having  only  four  members  of  one 
political  party,  when  there  should  have  been  five 
members  of  different  political  parties. 

SIXTHLY.— That  they  acted  fraudulently  and  without 
jurisdiction  in  casting  out  and  rejecting  the  returns  or 
statements  of  various  commissioners  of  election,  with- 
out having  before  them  any  statement  or  affidavit  of 
violence  or  intimidation  as  required  by  law  to  give 
them  jurisdiction  to  reject  returns  ;  that  they  neglected 
to  canvass  the  returns  of  the  commissioners  and  can- 
vassed those  of  the  supervisors  of  registration— that 
is,  the  parish  abstracts  instead  of  the  precinct  returns  ; 
that  they  did  not  canvass  all  of  these  (which  would 
have  elected  the  Tilden  electors),  but  falsely  and  fraud- 
ulently counted  in  the  Hayes  electors,  knowing  the 
count  to  be  false ;  and  that  they  offered  to  give  the 
votes  the  other  way  for  a  bribe  ;  and  that  the  certifi- 
cate given  by  Kellogg  to  the  Hayes  electors  was  the 
result  of  a  conspiracy  between  Kellogg  and  the  return- 


OPINIONS   IN    ELECTORAL    COMMISSION.  181 

ing  board  and  others  to  defraud  their  opponents  of 
their  election  and  the  State  of  her  right  to  vote  ;  and 
that  the  Hayes  electors  were  not  elected,  but  their 
opponents  were. 

SEVENTHLY.— That  two  of  the  electors  certified  by 
Kellogg  were  ineligible  at  the  time  of  the  election  by 
holding  office  tinder  the  Government  of  the  United 
States  ;  and  that  others  were  ineligible  by  holding 
State  offices  ;  and  that  Kellogg  could  not  legally  certify 
himself  as  an  elector. 

FEBRUARY  16,  1877. 
JUSTICE  BRADLEY  : — 

The  first  two  objections,  that  the  State  is  without  a 
republican  form  of  government,  and  that  Kellogg  was 
not  Governor,  are  not  seriously  insisted  upon. 

The  question  whether  the  State  had  any  law 
directing  the  appointment  of  electors  of  President  and 
Vice-President,  and  regulating  their  proceedings, 
depends  on  whether  the  Presidential  electoral  law  of 
1868  was  or  was  not  repealed  by  the  general  election 
law  of  1872,  which  is  admitted  to  have  been  in  force 
at  the  time  of  the  last  election. 

The  repealing  clause  relied  on  is  in  the  last  section 
of  the  act,  and  is  in  these  words  :  "  That  this  act  shall 
take  effect  from  and  after  its  passage,  and  that  all 
others  on  the  subject  of  election  laws  be  and  the  same 
are  hereby  repealed."  The  question  is,  whether  the 
act  relating  to  Presidential  electors  is  an  act  "  on  the 
subject  of  election  /aws"  within  the  meaning  of  this 
repealing  clause.  I  am  entirely  satisfied  that  it  is  not, 
and  that  no  part  of  it  is  repealed  by  the  act  of  1872, 
except  one  section  which  relates  to  the  mode  of 
returning  and  ascertaining  the  votes  for  electors.  My 
reasons  are  these : 


182  MISCELLANEOUS    WRITINGS. 

In  the  session  of  1868,  an  act  was  passed, 
approved  October  19,  1868,  which  professed  to  be  a 
general  election  law,  regulating  the  mode  of  holding 
and  ascertaining  the  result  of  all  elections  in  the  State, 
making  provision  for  preserving  order  thereat,  and  for 
executing  generally  the  one  hundred  and  third  article 
of  the  Constitution,  which  declares  that  "  the  privilege 
of  free  suffrage  shall  be  supported  by  laws  regulating 
elections  and  prohibiting  under  adequate  penalties  all 
undue  influence  thereon  from  power,  bribery,  tumult, 
or  other  improper  practice."  A  distinct  act  was 
passed  at  the  same  session,  approved  October  30, 1868, 
which  is  the  act  relating  to  Presidential  electors,  before 
referred  to.  It  certainly  was  not  supposed  that  one 
of  these  acts  conflicted  with  the  other.  The  one  regu- 
lated the  manner  of  holding  and  ascertaining  the 
results  of  elections  generally  ;  the  other  prescribed  the 
mode  of  appointing  the  Presidential  electors  to  which 
the  State  was  entitled,  namely,  that  they  should  be 
elected  on  the  day  fixed  by  Congress,  two  for  the  State 
at  large,  and  one  in  each  Congressional  district ;  pre- 
scribed their  qualifications,  and  the  time  and  place  of 
their  meeting  to  perform  their  duties ;  authorized 
them  when  met  to  fill  any  vacancies  caused  by  the 
failure  of  any  members  to  attend  ;  and  regulated  their 
pay.  One  section,  it  is  true,  directed  the  manner  in 
which  the  returns  should  be  canvassed,  namely,  by 
the  Governor  in  presence  of  the  Secretary  of  State, 
the  Attorney  General,  and  a  district  judge ;  and  the 
first  section  directed  that  the  election  for  electors 
should  be  held  on  the  day  appointed  by  the  act  of 
Congress,  and  that  it  should  be  held  and  conducted  in 
the  manner  and  form  provided  by  law  for  general 
State  elections. 


OPINIONS   IN    ELECTORAL    COMMISSION.  183 

At  the  same  session  (1868)  provision  was  made 
for  revising  all  the  general  statutes  of  the  State  under 
the  direction  of  a  committee  appointed  for  that  pur- 
pose. This  committee  appointed  Mr.  John  Ray  to 
make  the  revision.  It  was  duly  reported,  and  adopted 
during  the  session  of  1870.  It  contained,  under  the 
title  of  "Elections,"  the  act  of  October  19,  1868; 
and  under  the  title  "  Presidential  Electors,"  the  act  of 
October  30,  1868 ;  showing  conclusively  that  at  that 
time  the  two  acts  were  not  deemed  incompatible  with 
each  other. 

A  new  election  law  was  passed  at  the  same  session 
as  a  substitute  for  that  of  October  19,  1868,  repeal- 
ing all  conflicting  laws  ;  but  it  was  not  inserted  in  the 
revised  statutes,  because  they  did  not  contain  any  of 
the  laws  of  that  session.  A  law  was  passed,  however, 
authorizing  the  reviser  (Mr.  Ray)  to  publish  a  new 
edition,  under  the  name  of  a  Digest,  which  should 
embrace  the  acts  of  1870.  This  was  done,  and  the 
new  election  law  was  inserted  under  the  title,  "Elec- 
tions," in  place  of  the  old  law.  The  act  relating  to 
Presidential  electors  was  untouched,  except  to  insert 
in  it  the  new  method  of  making  the  returns  of  the 
elections  by  the  returning  board,  which  was  the  only 
part  of  the  new  law  which  conflicted  with  it.  It  is 
apparent,  therefore,  that  the  election  law  of  1870  was 
not  deemed  repugnant  to  the  law  relating  to  "  Presi- 
dential Electors,"  except  in  the  one  particular  men- 
tioned. 

Now,  the  act  of  1872,  which  it  is  alleged  does 
repeal  the  law  relating  to  Presidential  electors,  is  sim- 
ply a  substitute  for  the  general  election  law  of  1870, 
going  over  and  occupying  exactly  the  same  ground, 


184  MISCELLANEOUS   WRITINGS. 

and  no  more,  and  making  very  slight  alterations. 
The  principle  of  these  is  the  reconstruction  of  the 
returning  board.  With  this  exception  it  does  not  in 
the  least  conflict,  any  more  than  did  the  act  of  1870, 
with  the  provisions  of  the  law  relating  to  "  Presidential 
electors."  And  as  the  repealing  clause  therein  (before 
referred  to)  is  expressly  confined  to  "  acts  on  the  sub- 
ject of  election  laws,"  it  seems  to  me  most  manifest 
that  the  intent  was  to  repeal  the  election  law  only, 
and  not  that  relating  to  "  Presidential  electors."  This 
view  is  corroborated  by  the  sixty -ninth  section,  which 
has  this  expression  :  "  The  violation  of  any  provision 
of  the  act,  or  section  of  the  act,  repealed  by  this  act, 
shall  not  be  considered,"  etc.  Repealing  clauses  should 
not  be  extended  so  as  to  repeal  laws  not  in  conflict 
with  the  new  law,  unless  absolutely  necessary  to  give 
effect  to  the  words.  And  when  we  consider  the  con- 
sequences which  a  repeal  of  the  law  relating  to  Presi- 
dential electors  would  have,  in  depriving  the  State  of 
its  power  to  have  vacancies  in  its  electoral  college 
filled,  in  introducing  confusion  and  uncertainty  as  to 
the  districts  they  should  be  chosen  from,  and  by  leav- 
ing no  directions  as  to  the  time  and  place  of  their 
meeting,  it  seems  clear  that  it  could  never  have  been 
in  the  mind  of  the  legislature  to  repeal  that  law. 

There  is  a  section  in  the  act  of  1872  relating  to 
vacancies  which  it  has  been  suggested  is  repugnant  to 
the  authority  of  the  electoral  college  to  fill  vacancies 
in  that  body.  It  is  section  24,  which  enacts,  "  that 
all  elections  to  be  held  in  this  State  to  fill  any  vacan- 
cies shall  be  conducted  and  managed  and  returns 
thereof  shall  be  made,  in  the  same  manner  as  is  pro- 
vided for  general  elections."  But  this  is  explained  by 


OPINIONS   IN   ELECTORAL   COMMISSION.  185 

the  fact  that  both  the  Constitution  and  the  election 
law  itself  direct  vacancies  in  certain  offices  named 
(including  that  of  members  of  the  legislature)  to  be 
filled  by  a  new  election.  The  twenty-fourth  section 
means  only,  that  where  elections  are  to  be  held  to  fill 
vacancies,  they  shall  be  held  in  the  usual  manner.  It 
cannot  mean  that  all  vacancies  shall  be  filled  by  another 
election ;  because  the  Constitution  expressly  gives  to 
the  Governor  the  power  to  fill  vacancies  in  certain 
cases. 

I  am  clearly  of  opinion,  therefore,  that  the  law 
relating  to  Presidential  electors  has  not  been  repealed, 
except  as  to  the  mode  of  canvassing  the  returns  ;  and 
that  that  is  to  be  performed  by  the  returning  board 
created  by  the  act  of  1872,  in  lieu  of  the  Lynch 
returning  board  created  by  the  act  of  1870,  and  in 
lieu  of  the  method  originally  prescribed  in  the  law 
relating  to  Presidential  electors. 

This  disposes  of  the  objection  that  the  electoral 
college  had  no  power  to  fill  vacancies  in  its  own  body, 
since  the  electoral  law  has  a  section  which  expressly 
authorizes  the  college  to  fill  any  vacancy  that  may 
occur  by  the  non-attendance  of  any  of  the  electors 
by  four  o'clock  in  the  afternoon  of  the  day  for  giving 
their  votes. 

But  it  is  insisted  that  that  part  of  the  election 
law  of  1872  which  re-establishes  the  returning  board, 
and  gives  it  its  powers,  is  unconstitutional.  The  act 
declares  "  that  five  persons,  to  be  elected  by  the  Senate 
from  all  political  parties,  shall  be  the  returning  officers 
for  all  elections.  In  case  of  any  vacancy  by  death, 
resignation  or  otherwise,  by  either  of  the  board,  then 
the  vacancy  shall  be  filled  by  the  residue  of  the  board 
of  returning  officers. " 


186  MISCELLANEOUS   WRITINGS. 

The  powers  and  duties  of  the  board  are,  to  meet  in 
New  Orleans  within  ten  days  after  the  election,  canvass 
and  compile  the  statement  .of  votes  made  by  the  com- 
missioners of  election,  and  make  returns  of  the  election 
to  the  Secretary  of  State,  and  publish  a  copy  in  the 
public  journals,  declaring  the  names  of  all  persons  and 
officers  voted  for,  the  number  of  votes  for  each  person, 
and  the  names  of  the  persons  who  have  been  duly  and 
lawfully  elected.  It  is  declared  that  the  returns  thus 
made  and  promulgated  shall  be  prima  facie  evidence 
in  all  courts  of  justice  and  before  all  civil  officers,  until 
set  aside  after  contest  according  to  law,  of  the  right 
of  any  person  declared  elected.  On  receiving  notice 
from  any  supervisor  of  election  supported  by  affidavits, 
and  being  convinced  by  examination  and  testimony, 
that  by  reason  of  riot,  tumult,  acts  of  violence,  intim- 
idation, armed  disturbance,  bribery,  or  corrupt  influ- 
ences, the  purity  and  freedom  of  election  at  any  voting 
place  were  materially  interfered  with,  or  a  sufficient 
number  of  qualified  voters  to  change  the  result  were 
prevented  from  registering  and  voting,  it  is  made  the 
duty  of  the  board  to  exclude  from  their  returns  the 
votes  given  at  such  voting  place. 

Why  this  law  is  unconstitutional,  I  cannot  perceive. 
The  powers  given  may  be  abused,  it  is  true  ;  but  that 
is  the  case  with  all  powers.  The  constitutionality  of 
the  board  has  been  considered  by  the  Supreme  Court 
of  Louisiana,  and  has  been  fully  sustained.  It  is  said 
that  the  term  of  office  is  indefinite,  and  might  continue 
for  life.  But  where  no  period  is  fixed  for  the  tenureof 
an  office,  it  is  held  at  the  will  of  the  appointing  power, 
which  may,  at  any  time,  make  a  new  appointment. 
So  that  no  evil  consequences  can  ensue  from  this  cause. 


OPINIONS   IN    ELECTORAL    COMMISSION.  187 

If  the  members  of  the  board  were  appointed  for  a  term, 
the  Senate  could  re-appoint  them.  Allowing  them  to 
remain,  when  power  exists  to  remove  them  at  will,  is 
substantially  the  same  thing. 

The  objection  that  there  were  only  four  members 
constituting  the  board  at  the  canvass  in  December  last 
is  met  by  the  general  rule  of  the  law  in  regard  to 
public  bodies,  that  the  happening  of  a  vacancy  does 
not  destroy  the  body  if  a  quorum  still  remains.  The 
Supreme  Court  consists  of  nine  Justices ;  but  the 
court  may  be  legally  held  though  there  are  three 
vacancies,  only  six  being  required  for  a  quorum.  A 
vacancy  in  a  branch  of  the  legislature,  in  the  board  of 
supervisors  of  a  county,  in  the  commissioners  or  select- 
men of  a  town,  in  the  trustees  of  a  school  district, 
does  not  destroy  the  body,  nor  vitiate  its  action,  unless 
there  be  an  express  law  to  make  it  do  so. 

But  it  is  said  that  the  power  given  to  the  board 
to  fill  vacancies  in  its  own  body  is  mandatory.  It  is 
in  exactly  the  same  terms  as  those  contained  in  the 
election  law  of  1870  on  the  same  subject.  In  several 
cases,  arising  under  that  act,  the  Supreme  Court  of 
Louisiana  decided  that  this  language  was  not  com- 
pulsory, or,  at  least  did  not  affect  the  legal  constitu- 
tion of  the  board  if  not  complied  with ;  but  that  the 
board  was  a  legal  board,  though  only  four  members 
remained  in  it.  Had  the  board  never  been  filled  at  all 
it  might  be  urged  with  more  plausibility  that  it  was 
never  legally  constituted.  If  a  court  be  created  to 
consist  of  five  judges,  although,  if  once  legally  organ- 
ized, a  single  judge  might  hold  the  court  in  the  absence 
of  the  others;  yet  if  only  one  judge  were  ever 
appointed  it  might  very  properly  be  said  that  no  legal 


188  MISCELLANEOUS  WRITINGS. 

organization  had  ever  taken  place.     In  this  case  the 
vacancy  in  the  board  occurred  after  it  had  been  duly 
constituted  by  the  appointment  of  the  full  number  of 
members.     Afterwards  the  vacancy  occurred.     And  if 
it  be  the  correct  view,  as  was  decided  by  the  Supreme 
Court  of  Louisiana  in  regard  to  the  Lynch  board, 
that  the  power  given  to  the  remaining  members  to  fill 
the  vacancy  is  not  mandatory,  a  neglect  on  their  part 
to  fill  it  does  not,  it  seems  to  me,  destroy  the  existence 
of  the  board,  01  deprive  it  of  power  to  act.     If  it  be 
true,  as   alleged,   that  members  of  only  one  political 
party  remained  on  it,  it  may  have  been  an  impropriety 
in    proceeding  without  filling  the  vacancy,   and  the 
motives  of  the  members  may  have  been  bad  motives, 
corrupt,  fraudulent,  what  not ;  but  with  improprieties 
and  with  the  motives  of  the  members  we  have  noth- 
ing to  do.     We  are  not  the  judges  of  their  motives. 
The  question  with  which  we  have  to  do  is  a  question 
of  power,  of  legal  authority  in  four  members  to  act. 
And  of  this  I  have  no  doubt.     The  board  was  directed 
"  to  be  elected  by  the  Senate  from  all  political  parties," 
it  is  true.     It  does  not  appear  that  this  was  not  done. 
Can  it  be  contended    that  the  resignation  or  death 
of  one  of  the  members,  who  happened  to  be  alone  in 
his  party  connections,  deprives  the  remainder  of  the 
power  to   act  ?     I  think  not.     If  the  four  members 
remaining  were  all  of  different  politics,  the  objection 
would  lose  all  its  force.     So  that  it  is  resolved  to  this  ; 
that  the  power  to  fill  a  vacancy  is  mandatory  when 
any  political  party  ceases  to  be  represented  by  the 
death  or  resignation  of  a  member ;  and  is  not  manda- 
tory in  any  other  case.     Suppose,  instead  of  dying  or 
resigning,  the  member  changes  his  party  affiliations ; 


OPINIONS   IN    ELECTORAL   COMMISSION.  189 

is  there  a  vacancy  then  ?  Can  the  other  members 
oust  him,  or  can  he  oust  them  ?  The  Senate,  with 
whom  resides  the  power  of  appointing  a  new  board 
whenever  it  sees  fit,  might  be  in  duty  bound  to  act ; 
but  the  same  cannot  be  said  of  the  board  itself.  If 
this  were  not  Louisiana,  but  some  State  in  which  no 
charges  of  fraud  and  disorder  were  made,  the  objec- 
tion would  hardly  be  thought  of  as  having  any  legal 
validity. 

The  next  question  relates  to  the  alleged  illegality 
and  fraud  in  the  proceedings  of  the  returning  board. 
Can  the  two  Houses  of  Congress  go  behind  their 
returns  and  certificate  and  examine  into  their  conduct  ? 
I  have  already  discussed  this  subject  to  some  extent  in 
the  Florida  case.  I  shall  now  only  state  briefly  the 
conclusions  to  which  I  have  come  in  this  case. 

First.  I  consider  the  Governor's  certificate  of  the 
result  of  the  canvass  as  prima  facie  evidence  of  the 
fact;  but  subject  to  examination  and  contradiction. 
This  point  has  already  been  considered  in  the  Florida 
case. 

Secondly.  The  finding  and  return  of  the  State 
canvassers  of  the  election  are,  in  their  nature,  of 
greater  force  and  effect  than  the  Governor's  certificate, 
being  that  on  which  his  certificate  is  founded,  and 
being  the  final  result  of  the  political  machinery  estab- 
lished by  the  State  to  ascertain  and  determine  the  very 
fact  in  question.  "Each  State  shall  appoint,"  is  the 
language  of  the  Constitution.  Of  course  the  two 
Houses  must  be  satisfied  that  the  State  has  appointed, 
and  that  the  votes  presented  were  given  by  its 
appointees.  The  primary  proof  of  this,  as  prescribed 
by  the  laws  of  the  United  States,  is  the  certificate  of 
the  Governor.  But,  as  before  stated,  I  do  not  deem 


190  MISCELLANEOUS   WRITINGS. 

that  conclusive.  It  may  be  shown  to  be  false  or 
erroneous  in  fact,  or  based  upon  the  canvass  and 
return  of  a  board  or  tribunal  that  had  no  authority 
to  act.  This  was  conceded  in  the  proceeding  which 
took  place  with  regard  to  the  votes  of  Louisiana  in 
1873. 

Was  the  returning  board  of  Louisiana  a  tribunal, 
or  body,  constituted  by  the  laws  of  the  State,  with 
power  to  ascertain  and  declare  the  result  of  the  elec- 
tion, and  did  that  board,  in  the  exercise  of  the  juris- 
diction conferred  upon  it,  ascertain  and  declare  that 
result?  This,  it  seems  to  me,  is  the  point  to  be 
ascertained. 

This  involves  an  examination  of  the  laws  of  the 
State  to  ascertain  what  that  tribunal  is  and  what 
general  powers  it  is  invested  with,  not  for  the  purpose 
of  seeing  whether  all  the  proceedings  of  the  board,  or 
of  the  election  officers  whose  action  preceded  theirs, 
were  in  strict  compliance  with  the  law,  but  for  the 
purpose  of  seeing  whether  the  result  comes  from  the 
authorities  provided  by  the  State,  acting  substantially 
within  the  scope  of  their  appointment.  This  is  neces- 
sary to  be  done  in  order  to  see  whether  (whatever 
irregularities  may  have  occurred)  it  was  the  State  which 
made  the  appointment,  or  some  usurping  body  not 
authorized  by  the  State  at  all. 

The  examination  to  be  made  is  somewhat  analo- 
gous to  that  made  into  the  jurisdiction  of  a  court 
when  its  judgment  is  collaterally  assailed.  If  the 
board  declared  the  result  of  the  election,  and,  in  so 
doing  acted  within  the  general  scope  of  its  powers,  it 
seems  to  me  that  the  inquiry  should  there  end.  The 
Constitutional  power  of  the  two  Houses  of  Congress 
does  not  go  further. 


OPINIONS  IN    ELECTORAL   COMMISSION.  191 

On  the  question  of  jurisdiction,  I  think  it  compe- 
tent for  the  Houses  to  take  notice  of  the  fact  (if  such 
was  the  fact)  that  the  returning  board  had  no  returns 
before  it  at  all,  and,  in  effect  (to  speak  as  we  do  of 
judicial  proceedings),  without  having  a  case  before  it  to 
act  on ;  or  of  the  fact  (if  such  was  the  fact)  that  the 
board  which  pretended  to  act  was  not  a  legal  board. 
This  view  was  taken  by  both  Houses,  if  I  understand 
their  action  aright,  in  the  count  of  1873  in  rejecting 
the  electoral  votes  from  Louisiana  on  that  occasion. 
(Document  on  Electoral  Counts,  407).  Anything 
which  shows  a  clear  want  of  jurisdiction  in  the  return- 
ing board  divests  its  acts  of  authority,  and  makes  it 
cease  to  be  the  representative  of  the  will  of  the  State. 
But  it  must  appear  that  there  was  a  clear  and  most 
manifest  want  of  authority  ;  for,  otherwise  the  State 
might  be  deprived  of  its  franchise  by  mere  inadvert- 
ence of  its  agents,  or  an  honest  mistake  made  by 
them  as  to  the  law. 

In  the  case  before  us  the  board  had  ample  powers, 
as  we  have  seen.  These  powers  have  frequently  been 
sustained  by  the  Supreme  Court  of  the  State.  The 
law  of  Louisiana  not  only  gives  the  board  power  to 
canvass  the  returns,  but  to  reject  returns  whenever  in 
their  opinion,  upon  due  examination  had,  they  are 
satisfied  that  the  vote  was  affected  by  violence  and 
intimidation.  They  did  no  more  in  this  case,  suppos- 
ing them  to  have  done  all  that  is  alleged.  It  is  said, 
that  they  proceeded  without  jurisdiction,  because  they 
did  not  canvass  the  statements  of  the  commissioners 
of  election,  but  only  the  abstracts  of  the  parish  super- 
visors of  registration.  It  is  not  denied  that  they  had 
both  and  all  of  these  statements  before  them.  If  they 


192  MISCELLANEOUS   WRITINGS. 

acted  wrongfully  in  relying  on  the  abstracts  and  not 
examining  the  original  statements,  it  may  have  been 
misconduct  on  their  part,  but  it  cannot  be  said  that 
they  were  acting  beyond  the  scope  of  their  jurisdiction. 
If,  in  a  single  case,  and  without  coming  to  an  erron- 
eous result,  they  took  the  abstracts  instead  of  the 
original  returns,  it  would  be  just  as  fatal  as  a  matter 
of  jurisdiction  (and  no  more  so),  as  if  they  relied  on 
the  abstracts  in  all  cases.  It  would  only  be  error  or 
misconduct,  and  not  want  of  jurisdiction.  And  the 
Houses  of  Congress,  as  before  said,  are  not  a  court  of 
errors  and  appeals,  for  the  purpose  of  examining  regu- 
larity of  proceedings. 

It  is  also  said,  that  they  acted  without  jurisdiction 
in  rejecting  returns  without  having  before  them  certifi- 
cates of  violence  or  intimidation.  It  is  admitted  that 
they  took  a  large  quantity  of  evidence  themselves  on 
the  subject ;  but  it  is  contended  that  they  had  no 
jurisdiction  to  enter  upon  the  inquiry  without  a 
supervisor's  certificate  first  had.  Is  this  certain  ? 
The  one  hundred  and  third  article  of  the  Constitution 
made  it  the  duty  of  the  legislature  to  pass  laws  regu- 
lating elections,  to  support  the  privilege  of  free  suffrage, 
and  to  prohibit  undue  influence  thereon  from  power, 
bribery,  tumults,  or  other  improper  influences.  The 
election  law  was  passed  to  carry  out  this  article.  As 
one  means  of  carrying  it  out  in  spirit,  the  returning 
board  were  prohibited  from  counting  a  return  if  it 
was  accompanied  by  a  certificate  of  violence,  until 
they  had  investigated  the  matter  by  examination  and 
proof.  Receiving  such  a  certificate  they  could  not 
count  a  return  if  they  wanted  to.  Now,  is  it  certain, 
that  under  such  a  law,  if  the  board  had  knowledge 


OPINIONS   IN    ELECTORAL    COMMISSION.  193 

from  other  sources  than  a  certificate,  that  violence  and 
intimidation  had  been  exercised  and  had  produced  the 
result,  they  could  not  inquire  into  it  ?  And  more,  is 
their  whole  canvass  to  be  set  aside  because  they  made 
an  investigation  under  such  circumstances  ?  There  is 
no  other  tribunal  in  Louisiana  for  making  it.  The 
Supreme  Court  has  decided  that  the  courts  cannot  go 
behind  these  returns.  In  my  judgment  we  have  no  more 
authority  to  reject  their  canvass  for  this  cause  than 
for  that  of  not  using  the  original  statements.  It  is  as 
if  a  court  having  jurisdiction  of  a  cause,  used  a  piece 
of  evidence  on  the  trial  which  it  had  no  jurisdiction 
to  take.  It  would  be  mere  irregularity  at  most,  and 
would  not  render  its  judgment  void  in  any  collateral 
proceeding. 

I  cannot  bring  my  mind  to  believe  that  fraud  and 
misconduct  on  the  part  of  the  State  authorities,  con- 
stituted for  the  very  purpose  of  declaring  the  final 
will  of  the  State,  is  a  subject  over  which  the  two 
Houses  of  Congress  have  jurisdiction  to  institute  an 
examination.  The  question  is  not  whether  frauds 
ought  to  be  tolerated,  or  whether  they  ought  not  to 
be  circumvented  ;  but  whether  the  Houses  of  Congress, 
in  exercising  their  power  of  counting  the  electoral  votes, 
are  entrusted  by  the  Constitution  with  authority  to 
investigate  them.  If  in  any  case  it  should  clearly  and 
manifestly  appear,  in  an  unmistakable  manner,  that 
a  direct  fraud  had  been  committed  by  a  returning 
board  in  returning  the  electors  they  did,  and  if  it  did 
not  require  an  investigation  on  the  part  of  the  two 
Houses  to  ascertain  by  the  taking  of  evidence  the 
truth  of  the  case,  I  have  no  doubt  that  the  Houses 
might  rightfully  reject  the  vote— as  not  being  the  vote 


194  MISCELLANEOUS   WRITINGS. 

of  the  State,  But  where  no  such  manifest  fraud 
appears,  and  fraud  is  only  charged,  how  are  the  two 
Houses  to  enter  upon  a  career  of  investigation  ?  If 
the  field  of  inquiry  were  once  opened,  where  is  its 
boundary  ?  Evidently  no  such  proceeding  was  in  the 
minds  of  the  framers  of  the  Constitution.  The  short 
and  explicit  directions  there  given,  that  the  votes 
should  first  be  produced  before  the  Houses  when  met 
for  that  purpose,  and  that  "  the  votes  shall  then  be 
counted,"  is  at  variance  with  any  such  idea.  An 
investigation  beforehand  is  not  authorized  and  was 
not  contemplated,  and  would  be  repugnant  to  the 
limited  and  special  power  given.  What  jurisdiction 
have  the  Houses  on  the  subject  until  they  have  met 
under  the  Constitution,  except  to  provide  by  law  for 
facilitating  the  performance  of  their  duties  ?  An  inves- 
tigation afterwards,  such  as  the  question  raised  might 
and  frequently  would  lead  to,  would  be  utterly  incom- 
patible with  the  performance  of  the  duty  imposed. 

At  all  events,  on  one  or  two  points  I  am  perfect^ 
clear.  First,  that  the  two  Houses  do  not  constitute 
a  canvassing  board  for  the  purpose  of  investigating 
and  deciding  on  the  results  of  the  election  for  electors 
in  a  State.  The  proposed  act  of  1800  carefully 
excluded  any  inquiry  into  the  number  of  votes  on 
which  any  elector  was  elected  ;  and  I  think  it  cannot 
well  be  pretended  that  the  Houses  have  power  to  go 
further  into  the  inquiry  than  was  proposed  by  that 
bill.  Secondly,  that  the  two  Houses  are  not  a  tribunal, 
or  court  for  trying  the  validity  of  the  election  returns 
and  sitting  in  judgment  on  the  legality  of  the  proceed- 
ings in  the  course  of  the  election.  The  two  Houses, 
with  only  their  Constitutional  jurisdiction,  are  neither 


OPINIONS   IN    ELECTORAL   COMMISSION.  195 

of  these  things  ;  though  as  to  the  election,  qualifica- 
tions, and  returns  of  their  own  members,  they  are 
certainly  the  latter,  having  the  right  to  judge  and 
decide. 

I  have  thus  far  spoken  of  the  power  of  the  two 
Houses  of  Congress  as  derived  from  the  Constitution. 
Whether  the  legislative  power  of  the  Government 
might  not,  by  law,  make  provision  for  an  investigation 
into  frauds  and  illegalities,  I  do  not  undertake  to 
decide.  It  cannot  be  done,  in  my  judgment,  by  any 
agency  of  the  Federal  Government  without  legislative 
regulation.  The  necessity  of  an  orderly  mode  of  tak- 
ing evidence  and  giving  opportunity  to  cross-examine 
witnesses,  would  require  the  interposition  of  law. 
The  ordinary  power  of  the  two  Houses  as  legislative 
bodies,  by  which  they  investigate  facts  through  the 
agency  of  committees,  is  illy  adapted  to  such  an 
inquiry. 

It  seems  to  me,  however,  the  better  conclusion, 
that  the  jurisdiction  of  the  whole  matter  belongs 
exclusively  to  the  States.  Let  them  take  care  to  pro- 
protect  themselves  from  the  perpetration  of  frauds. 
They  need  no  guardians.  They  are  able,  and  better 
able  than  Congress,  to  create  every  kind  of  political 
machinery  which  human  prudence  can  contrive,  for 
circumventing  fraud,  and  preserving  their  true  voice 
and  vote  in  the  Presidential  election. 

In  my  judgment,  the  evidence  proposed  cannot  be 
received. 

Then,  as  to  the  alleged  ineligibility  of  the  candidates. 
First,  their  alleged  ineligibility  under  the  laws  of  the 
State,  I  think  we  have  nothing  to  do  with.  It  has 
been  imposed  for  local  reasons  of  State  policy,  but  if 


196  MISCELLANEOUS    WRITINGS. 

the  State  sees  fit  to  waive  its  own  regulations  on  this 
subject  it  is  her  own  concern.  If  the  State  declares  that 
no  person  shall  hold  two  offices,  or  that  all  officers 
shall  possess  an  estate  of  the  value  of  a  thousand  dol- 
lars, or  imposes  any  other  qualification,  or  disqualifica- 
tion, it  is  for  the  State  to  execute  its  own  laws  in  this 
behalf.  At  all  events,  if  persons  are  appointed  electors 
without  having  the  qualifications,  or  having  the  dis- 
qualifications, and  they  execute  the  functipn  of  casting 
their  votes,  their  acts  cannot  be  revised  here. 

Two  of  the  electors,  however,  Levisee  and  Brewster, 
are  alleged  to  have  held  offices  of  trust  and  profit 
under  the  United  States,  when  the  election  was  held 
on  the  7th  of  November.  It  is  not  alleged  that  they 
did  so  on  the  6th  of  December,  when  they  gave  their 
votes.  Being  absent  when  the  electoral  college  met, 
their  places  were  declared  vacant,  and  the  college  itself 
proceeded  to  re-appoint  them  under  the  law,  and  sent 
for  them.  They  then  appeared  and  took  their  seats.  So 
that,  in  point  of  fact,  the  objection  does  not  meet  the 
case,  unless  their  being  federal  office-holders  at  the 
time  of  the  election  affects  it. 

Though  not  necessary  to  the  decision  of  this  case, 
I  have  re-examined  the  question  of  Constitutional 
ineligibility  since  the  Florida  case  was  disposed  of, 
and  must  say  that  I  am  not  entirely  satisfied  with  the 
conclusion  to  which  I  then  came,  namely,  that  if  a  dis- 
qualified elector  casts  his  vote  when  disqualified,  the 
objection  cannot  be  taken.  I  still  think  that  this  dis- 
qualification at  the  time  of  his  election  is  not  material, 
if  such  disqualification  ceases  before  he  acts  as  an 
elector.  But,  as  at  present  advised,  I  am  inclined  to 
the  opinion  that  if  constitutionally  disqualified  when  he 
casts  his  vote,  such  vote  ought  not  to  be  counted. 


OPINIONS   IN   ELECTORAL   COMMISSION.  197 

I  still  think,  as  I  thought  in  discussing  the  Florida 
case,  that  the  form  of  the  Constitutional  prohibition 
is  not  material ;  that  it  is  all  one,  whether  the  prohibi- 
tion is  that  a  federal  officer  shall  not  be  an  elector,  or, 
that  he  shall  not  be  appointed  an  elector.  The  spirit 
and  object  of  the  prohibition  is,  to  make  office-holding 
under  the  Federal  Government  a  disqualification. 
That  is  all.  And  this  is  the  more  apparent  when  we 
recollect  the  reasons  for  it.  When  the  Constitution 
was  framed,  the  great  object  in  creating  the  office  of 
electors  to  elect  the  President  and  Vice-President,  was 
to  remove  this  great  duty  as  far  as  possible  from  the 
influence  of  popular  passion  and  prejudice,  and  to 
place  it  in  the  hands  of  men  of  wisdom  and  discretion, 
having  a  knowledge  of  public  affairs  and  public  men. 
The  idea  was  that  they  were  to  act  with  freedom  and 
independence.  The  jealousy  which  was  manifested  in 
the  convention,  against  the  apprehended  influence  and 
power  of  the  general  Government,  and  especially  of 
the  legislative  branch,  induced  the  prohibition  in  ques- 
tion. It  was  feared  that  the  members  of  the  Houses 
of  Congress  and  persons  holding  office  under  the  Gov- 
ernment would  be  peculiarly  subject  to  these  influences 
in  exercising  the  power  of  voting  for  Chief  Magistrate. 
It  was  not  in  the  process  of  appointment  that  this  influ- 
ence was  dreaded  ;  but  in  the  effect  that  it  would  have 
on  the  elector  himself  in  giving  his  vote. 

It  seems  to  me,  therefore,  that  if  a  person  appointed 
an  elector  has  no  official  connection  with  the  Federal 
Government  when  he  gives  his  vote,  such  vote  cannot 
be  justly  excepted  to.  And  that  substantial  effect  is 
given  to  the  Constitutional  disqualification  if  the 
electoral  vote  given  by  such  officer  is  rejected.  And 
my  present  impression  is  that  it  should  be  rejected, 


198  MISCELLANEOUS   WRITINGS. 

Circumstances,  it  is  true,  have  greatly  changed 
since  the  Constitution  was  adopted.  Instead  of  elect- 
ors being,  as  it  was  supposed  they  would  be,  invested 
with  power  to  act  on  the  dictates  of  their  own  judg- 
ment and  discretion  in  choosing  a  President,  they  have 
come  to  be  mere  puppets,  elected  to  express  the  pre- 
ordained will  of  the  political  party  that  elects  them. 
The  matter  of  ineligibility  has  come  to  be  really  a 
matter  of  no  importance,  except  as  it  still  stands  in 
the  Constitution,  and  is  to  be  interpreted  as  it  was 
understood  when  the  Constitution  was  adopted. 
Hence,  we  must  ascertain,  if  we  can,  what  was  its 
original  design  and  meaning,  without  attempting  to 
stretch  or  enlarge  its  force. 

[It  may  be  proper  that  I  should  here  add,  that  I  con- 
cede that  there  is  great  force  in  what  is  urged  by  other 
members  of  the  Commission,  respecting  the  difficulty 
which  still  remains,  of  the  two  Houses,  when  assem- 
bled to  count  the  votes,  undertaking  an  investigation 
of  facts  to  determine  a  question  of  ineligibility,  which 
might  be  extended  in  such  a  manner  as  materially  to 
interfere  with  the  main  duty  for  which  they  assemble. 
This  was  probably  seen  when  the  law  of  1800  was 
proposed  for  the  purpose  of  having  such  matters 
determined  by  a  grand  committee  preparatory  to  the 
meeting  of  the  two  Houses  in  joint  convention.  The 
passage  of  some  law  regulating  the  matter  is  on  all 
accounts  desirable.] 


OPINIONS   IN    ELECTORAL    COMMISSION.  199 


III.— THE  OREGON  CASE. 

The  laws  of  Oregon  do  not  provide  for  a  Board  of 
State  Canvassers,  but  direct  as  follows  : 

It  shall  be  the  duty  of  the  Secretary  of  State,  in  presence  of  the 
Governor,  to  proceed  within  thirty  days  after  the  election,  and  sooner, 
if  the  returns  be  all  received,  to  canvass  the  votes  given  for  Secretary 
and  Treasurer  of  State,  State  printer,  Justices  of  the  Supreme  Court, 
members  of  Congress  and  district  attorneys. 

And  then,  with  regard  to  State  officers,  directs : 
"  The  Governor  shall  grant  a  certificate  of  election  to 
the  person  having  the  highest  number  of  votes,  and 
shall  also  issue  a  proclamation  declaring  the  election 
of  such  person." 

But  with  regard  to  Presidential  electors,  it  directs  : 
"  The  votes  for  the  electors  shall  be  given,  received, 
returned,  and  canvassed  as  the  same  are  given, 
returned,  and  canvassed  for  members  of  Congress.  The 
Secretary  of  State  shall  prepare  two  lists  of  the  names 
of  the  electors  elected,  and  affix  the  seal  of  the  State 
to  the  same.  Such  lists  shall  be  signed  by  the  Governor 
and  Secretary,  and  by  the  latter  delivered  to  the  college 
of  electors  at  the  hour  of  their  meeting  on  such  first 
Wednesday  of  December." 

When  the  electors  are  met  on  the  day  for  casting 
their  votes,  the  law  directs :  "If  there  shall  be  any 
vacancy  in  the  office  of  an  elector,  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise, 
the  electors  present  shall  immediately  proceed  to  fill, 
by  viva  voce  and  plurality  of  votes,  such  vacancy  in 
the  electoral  college." 

Watts,  one  of  the  electors  having  the  highest  num- 
ber of  votes,  was  a  postmaster  at  the  time  of  the 
election,  November  7,  1876 ;  but  resigned  that  office 
during  the  month. 


200 


MISCELLANEOUS    WRITINGS. 


On  the  4th  of  December,  the  Secretary  of  State,  in 
presence  of  the  Governor,  canvassed  the  votes  for 
Presidential  electors,  made  a  statement  of  the  result, 
authenticated  it  under  the  seal  of  the  State,  and  filed 
it  in  his  office.  The  following  is  a  copy  of  this  docu- 
ment : 

ABSTRACT  OF  VOTES  CAST  AT  THE  PRESIDENTIAL  ELECTION  HELD  IN  THE 
STATE  OF  OREGON  NOVEMBER  7,  1876,  FOR  PRESIDENTIAL  ELECTORS. 


,a 
bo 

_• 

j 

•a 

d 

a 

'C 

5 

| 

F 

3 

Counties. 

0 

s 

•£ 

§ 

£ 

• 

j 

"B 

W 

^ 

d 

O 

fi 

^ 

™ 

w 

£ 

CJ 

c* 

d 

4 

H 

Q 

5 

s 

£ 

*-> 

*-> 

H 

« 

£ 

Q 

& 

fl 

Baker  

318 

319 

319 

549 

550 

549 

1 

i 

1 

Benton  

615 

615 

615 

567 

567 

567 

77 

77 

77 

Clackamas.. 

949 

950 

950 

724 

724 

724 

17 

17 

17 

Clatsop  
Columbia.... 

432 
157 

432 
156 

432 
157 

386 
179 

385 
179 

386 
179 

22 

"22 

Coos  

571 

571 

571 

512 

516 

515 

Curry  

131 

131 

131 

124 

124 

124 

8 

3 

8 

Douglas  

1,002 

1,002 

1,003 

847 

847 

847 

48 

43 

4;; 

Grant  

315 

314 

316 

279 

279 

277 

8 

3 

8 

Jackson  
Josephine  
Lane  
Lake  

585 
209 
949 
173 

585 
209 
949 
173 

586 
209 
949 
173 

827 
252 
946 
258 

840 
252 
946 
258 

840 
252 
946 
258 

0 
4 
88 

5 
4 
33 

6 
.  4 
88 

Linn  
Marion  

1,323 
1,780 

1,324 
1,782 

1,323 

1,781 

1,404 
1,154 

1,404 
1,154 

1,404 
1,155 

14-0 

24 

141 
23 

Sg 

Multnomah 
Polk  

2,124 
607 

2,122 
608 

2,122 
608 

1,525 
542 

1,528 
542 

1,525 
542 

2 
64 

_2 

2 

Tillamook... 

119 

119 

119 

76 

76 

76 

1 

1 

1 

Umatilla  

486 

486 

486 

742 

742 

742 

42 

42 

42 

Union  

366 

366 

366 

525 

525 

525 

83 

32 

82 

Wasco  

491 

491 

493 

621 

621 

619 

Washington  .. 
Yamhill  

693 
811 

692 
810 

693 
812 

423 
674 

424 
674 

423 
674 

e 

6 

6 

Total  

15,206 

15,206 

15,214 

14,136 

14,157 

14,149  509 

510 

6O7 

Simpson,  1 ;  Gray,  1 ;  Saulsbury,   1  ;  McDowell,  1. 

SALEM, STATE  OF  OREGON : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the 
result  of  the  vote  cast  for  Presidential  electors  at  a  general  election 
held  in  and  for  the  State  of  Oregon  on  the  7th  day  of  November, 
A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his  excellency, 
L.  F.  GROVER,  Governor  of  said  State,  according  to  law,  on  the  4th 
day  of  December,  A.  D.  1876,  at  2  o'clock  P.  M.  of  that  day,  by  the 
Secretary  of  State. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 


OPINIONS  IN   ELECTORAL   COMMISSION.  201 

The  statute  of  Oregon  declares :  "In  all  elections 
in  this  State  the  person  having  the  highest  number  of 
votes  for  any  office  shall  be  deemed  to  have  been 
elected." 

On  the  6th  of  December,  when  the  electors  met  to 
give  their  votes  for  President  and  Vice-President, 
Watts  resigned  as  elector,  and  was  re-appointed  by 
Odell  and  Cartwright  to  fill  the  vacancy.  The  Governor 
refused  them  the  usual  certificate,  but  certified  that 
Odell,  Cartwright  and  Cronin  received  the  highest 
number  of  votes  cast  for  persons  eligible  under  the 
Constitution  of  the  United  States,  and  declared  them 
duly  elected.  As  Odell  and  Cartwright  refused  to  meet 
with  Cronin,  he  assumed  to  fill  two  vacancies.  This 
proceeding  of  the  Governor  and  Cronin  raised  the  prin- 
cipal question  in  the  Oregon  case. 

FEBRUARY  23,  1877. 
JUSTICE  BRADLEY:— 

This  case  differs  from  the  two  cases  already  heard 
in  this  :  By  the  laws  of  both  Florida  and  Louisiana, 
the  final  determination  of  the  result  of  the  election 
was  to  be  made  by  a  board  of  canvassers  invested 
with  power  to  judge  of  the  local  returns  and  to  reject 
them  for  certain  causes  assigned.  In  Oregon,  no  such 
board  exists.  The  general  canvass  for  the  State  is 
directed  to  be  made  by  the  Secretary  of  State  in  pres- 
ence of  the  Governor,  from  the  abstracts  sent  to  him 
by  the  County  Clerks.  This  canvass  having  been 
made,  the  result  is  declared  by  the  law.  The  canvass 
is  the  last  act  by  which  the  election  is  decided  and 
determined.  This  canvass  was  made  in  the  present 
case  on  the  4th  day  of  December  (1876) ;  the  result 


202  MISCELLANEOUS   WRITINGS. 

was  recorded  in  a  statement  in  writing  made  by  the 
Secretary  and  filed  by  him  in  his  office.  This  state- 
ment or  abstract  thus  became  the  record  evidence  of 
the  canvass.  It  remains  in  the  Secretary's  office  to-day, 
as  the  final  evidence  and  determination  of  the  result. 

We  have  before  us,  under  the  great  seal  of  the  State, 
a  copy  of  this  statement,  which  shows  the  result  to 
have  been  a  clear  plurality  of  over  a  thousand  votes 
in  favor  of  the  three  electors,  Odell,  Cartwright  and 
Watts  ;  and  there  is  added  thereto  a  list  of  the  votes. 

This  document,  after  exhibiting  a  tabulated  state- 
ment of  the  votes  given  for  each  candidate  in  each 
county  of  the  State,  footing  up  for  Odell,  15,206; 
Watts,  15,206  ;  Cartwright,  15,214 ;  Klippel,  14,136  ; 
Cronin,  14,157  ;  Laswell,  14,149,  and  a  few  scattering 
votes,  was  certified  and  authenticated  at  the  end,  as 
follows : 

SALEM,  STATE  OF  OREGON  : 

I  hereby  certify  that  the  foregoing  tabulated  statement  is  the 
result  of  the  vote  cast  for  Presidential  electors  at  a  general  election, 
held  in  and  for  the  State  of  Oregon  on  the  7th  day  of  November 
A.  D.  1876,  as  opened  and  canvassed  in  the  presence  of  his  excellency, 
L.  F.  GROVER,  Governor  of  said  State,  according  to  law,  on  the  4th 
day  of  December,  A.  D.  1876,  at  2  o'clock  P.  M.  of  that  day,  by  the 
Secretary  of  State. 

[SEAL.]  S.  F.  CHADWICK, 

Secretary  of  State  of  Oregon. 

This  document,  with  this  certificate  and  authenti- 
cation upon  it,  was  filed  by  the  Secretary  in  his  office 
on  the  4th  day  of  December. 

To  the  exemplified  copy  of  it,  which  was  sent  to 
the  President  of  the  Senate  (and  which  we  have  before 
us),  is  added  another  document,  entitled  "List  of 
votes  cast  at  an  election  for  electors  of  President  and 


OPINIONS  IN   ELECTORAL  COMMISSION.  203 

Vice-President  of  the  United  States  in  the  State  of 
Oregon,  held  on  the  7th  day  of  November,  1876," 
which  contains  the  votes  given  for  each  candidate  (the 
same  as  in  the  canvass)  written  out  in  words  at 
length,  and  certified  by  the  Secretary  of  State,  also 
under  the  great  seal  of  the  State,  to  be  the  entire  vote 
cast  for  each  and  all  persons  for  the  office  of  electors 
as  appears  by  the  returns  of  said  election  on  file  in  his 
office. 

Having  made  this  canvass,  recorded  it,  and  filed 
it  in  his  office,  the  Secretary  of  State  was  fiinctus 
officio  with  regard  to  the  duty  of  ascertaining  the 
result  of  the  election.  He  could  not  change  it ;  he  could 
not  tamper  with  it  in  any  way.  By  his  act,  and  by 
this  record  of  his  act,  the  ascertainment  of  the  election 
in  Oregon  was  closed.  Its  laws  give  no  revisory 
power  to  any  other  functionary  ;  and  give  none  to  the 
Secretary  himself.  And  this,  as  we  have  seen,  was 
done  and  completed  on  the  4th  day  of  December, 
at  2  o'clock  in  the  afternoon,  in  the  presence  of  the 
Governor,  according  to  the  law  of  Oregon. 

Now,  what  is  the  decree  of  the  law  on  this  trans- 
action ?  It  is  clear  and  unmistakable.  "  In  all  elec- 
tions in  this  State  the  person  having  the  highest  num- 
ber of  votes  for  any  office  shall  be  deemed  to  be 
elected."  It  is  not  left  for  any  functionary  to  say 
that  any  other  person  shall  be  deemed  to  be  elected. 
No  discretion,  no  power  of  revision  is  given  to  any 
one,  except  as  the  general  law  of  the  State  has  given 
to  the  judicial  department  power  to  investigate  the 
right  of  persons  elected  to  hold  the  offices  to  which 
they  have  been  elected. 

Now,  what  is  the  next  step  to  performed  ?  It  is 
this :  "  The  Secretary  of  State  shall  prepare  two  lists 


204  MISCELLANEOUS   WRITINGS. 

of  the  names  of  the  electors  elected,  and  affix  the  seal 
of  the  State  to  the  same.  Such  lists  shall  be  signed 
by  the  Governor  and  Secretary,  and  by  the  latter 
delivered  to  the  college  of  electors  at  the  hour  of  their 
meeting  on  such  first  Wednesday  of  December."  This 
direction  seems  to  be  intended  as  a  compliance  with 
the  act  of  Congress  of  1792.  It  is  true,  that  this  act 
requires  three  lists  instead  of  two  to  be  delivered  to 
the  electors  ;  but  the  number  required  by  the  State 
law  was  probably  an  inadvertence.  •  Be  this,  however, 
as  it  may  ;  what  names  was  the  Secretary  required  by 
law  to  insert  in  his  certificate  ? 

He  made  out  his  certificate  on  the  6th  day  of 
December,  two  days  after  his  canvass  had  been  com- 
pleted, recorded,  and  deposited  in  the  public  archives. 
In  making  this  certificate  he  was  performing  a  mere 
ministerial  duty.  It  was  his  clear  duty  to  insert  in 
his  certificate  the  names  of  the  persons  whom  the  law 
declared  to  be  elected.  Doing  otherwise  was  not  only 
a  clear  violation  of  duty,  but  he  made  a  statement 
untrue  in  fact ;  and  the  Governor  putting  his  name  to 
the  certificate,  joined  in  that  misrepresentation.  It 
may  not  have  been  an  intended  misrepresentation,  and 
the  use  of  the  word  "  eligible  "  may  have  been  thought 
a  sufficient  qualification ;  nevertheless  it  was  a  mis- 
representation in  fact  and  in  law,  and  it  all  appears 
from  the  record  itself.  It  needs  no  extrinsic  evidence. 

But  it  is  said  that  the  Governor  has  the  power  to 
disregard  the  canvass,  and  to  reject  an  elector  whom  he 
is  satisfied  is  ineligible.  There  is  no  law  of  Oregon 
which  gives  him  this  power.  In  my  judgment,  it  was 
a  clear  act  of  usurpation.  It  was  tampering  with  an 
election  which  the  law  had  declared  to  be  closed  and 
ascertained. 


OPINIONS   IN    ELECTORAL    COMMISSION.  205 

It  is  said,  however,  that  he  may  refuse  a  commis- 
sion to  an  ineligible  person  elected  to  a  State  office. 
If  so,  it  does  not  decide  this  case.  And  it  seems  to  me 
that  such  an  act,  even  with  regard  to  State  officers, 
would  be  an  encroachment  on  the  judicial  power.  A 
case  is  referred  to  as  having  been  decided  in  Oregon,  in 
which  the  appointment  by  the  Governor  to  fill  a 
vacancy  in  a  State  office  caused  by  the  incumbent 
being  appointed  to  a  United  States  office,  was  sus- 
tained. But  surely  the  judgment  in  that  case  must 
have  been  based  on  the  fact  that  there  was  a  vacancy 
and  not  on  the  fact  that  the  Governor  assumed  to 
judge  whether  there  was  a  vacancy  or  not.  His  exec- 
utive act,  whether  in  determining  his  own  action  he 
had  the  right  to  decide  the  question  of  eligibility  or 
not,  was  valid  or  not  according  as  the  very  truth  of 
the  fact  was. 

But  in  the  case  before  us  he  had  a  mere  ministerial 
act  to  perform.  He  had  no  discretionary  power. 

If  anyone1  could  have  taken  notice  of  the  question 
of  supposed  ineligibility  it  was  the  Secretary  of  State 
when  making  his  canvass.  Had  he  taken  it  upon 
himself  to  throw  out  the  votes  given  for  Watts,  he 
would  have  had  a  much  more  plausible  ground  of 
justification  for  his  act  than  the  Governor  had,  to 
whom  no  power  is  given  on  the  subject. 

But  it  is  said,  no  matter  whether  the  Governor  and 
Secretary  acted  right  or  wrong ;  they  were  the  func- 
tionaries designated  for  giving  final  expression  to  the 
will  of  the  State,  and  their  certificate  must  be  received 
as  such,  under  the  decision  in  the  cases  of  Florida  and 
Louisiana.  To  this  view,  however,  there  is  a  conclu- 
sive answer.  As  I  said  before,  the  certificate  to  be 


206  MISCELLANEOUS  WRITINGS. 

given  by  the  Secretary  and  Governor  to  these  electors 
was  not  intended  as  any  part  of  the  machinery  for 
ascertaining  the  result  of  ..the  election  ;  but  as  a  mere 
certificate  of  the  fact  of  election,  as  a  credential  to  be 
used  by  the  electors  in  acting  as  such  and  transmit- 
ting their  votes  to  the  President  of  the  Senate  of 
the  United  States,  as  required  by  the  act  of  Con- 
gress of  1792.  As  such  it  is  prima  facie  evidence, 
it  is  true ;  but  no  person  has  contended  that  it  cannot 
be  contradicted  and  shown  to  be  untrue,  especially  by 
evidence  of  equal  dignity.  We  did  not  so  decide  in 
the  other  cases.  We  held  that  the  final  decision  of  the 
canvass  by  the  tribunal  or  authority  constituted  for 
that  purpose  could  not  be  revoked  by  the  two  Houses 
of  Congress,  by  going  into  evidence  behind  their  action 
and  return. 

The  only  remaining  question  is,  whether  there  was 
a  vacancy  in  the  college  at  the  time  when  Odell  and 
Cartwright  assumed  to  fill  a  vacancy  on  the  6th  day 
of  December,  1876.  It  seems  to  me,  that  there  was, 
whether  there  was  a  failure  to  elect  on  account  of  the 
ineligibility  of  Watts,  or  on  account  of  his  resignation 
afterwards. 

It  is  agreed  by  a  large  majority  of  the  Commission, 
that  Cronin  was  not  elected.  Some  of  this  majority 
take  the  ground  that  Watts  was  duly  elected,  what- 
ever effect  his  ineligibility,  had  it  continued,  might 
have  had  on  his  vote.  Others  of  them  take  the  ground 
that  there  was  no  election  of  a  third  elector.  It  seems 
to  me  that  it  makes  no  difference  in  this  case  which  of 
these  views  is  the  correct  one;  there  was  a  clear 
vacancy  in  either  case. 

The  act  of  Congress  of  1845  declares  that  "  each 


OPINIONS  IN   ELECTORAL   COMMISSION.  207 

State  may  by  law  provide  for  the  filling  of  any  vacan- 
cies which  may  occur  in  its  college  of  electors  when 
such  college  meets  to  give  its  electoral  vote  ";  and  also, 
"  that  whenever  any  State  has  held  an  election  for  the 
purpose  of  choosing  electors,  and  has  failed  to  make  a 
choice  on  the  day  prescribed  by  law,  the  electors  may 
be  appointed  on  a  subsequent  day  in  such  a  manner  as 
the  legislature  of  such  State  may  direct." 

The  first  contingency  would  occur  when  some  of 
the  electors  were  elected  and  could  meet  and  fill  any 
vacancy  in  their  number.  The  second  contingency 
would  occur  when  no  electors  were  appointed,  and, 
therefore,  no  meeting  could  be  held.  It  is  evident  that 
these  are  two  very  different  cases ;  and  that  the  one 
before  us  does  not  belong  to  the  latter,  but  to  the 
ormer.  It  is  the  difference  between  a  college  which  is 
not  full,  and  no  college  at  all.  In  Oregon,  according 
to  the  exigency  supposed,  the  case  belonged  to  that  of 
a  vacancy  under  the  act  of  1845. 

The  act  of  Oregon  in  relation  to  vacancies  in  the 
electoral  college  was  evidently  passed  in  view  of  the 
act  of  Congress  upon  which  it  was  based  ;  and  its 
terms  are  so  broad  and  comprehensive  that  I  cannot 
doubt  that  it  was  intended  to  apply  to  every  case  of 
vacancy.  The  words  are  that  "  if  there  shall  be  any 
vacancy  in  the  office  of  an  elector,  occasioned  by 
death,  refusal  to  act,  neglect  to  attend,  or  otherwise, 
the  electors  present  shall  immediately  proceed  to  fill," 
etc.  This  clearly  covers  every  supposable  case,  and 
must  be  intended  to  be  as  broad  as  the  corresponding 
section  of  the  act  of  Congress.  It  is  more  general  in 
its  terms  than  the  act  relating  to  vacancies  in  State 
offices,  which  specifies  only  certain  classes  of  cases. 


208  MISCELLANEOUS   WRITINGS. 

As  the  electors  Odell  and  Cartwright  filled  the 
vacancy  in  a  regular  manner,  I  cannot  avoid  the  con- 
clusion that  they,  together  with  Watts,  were  the  true 
electors  for  the  State  of  Oregon  on  the  6th  day  of 
December,  and  that  their  votes  ought  to  be  counted. 

Their  credentials  are  not  signed  by  the  Governor, 
it  is  true ;  but  that  is  not  an  essential  thing ;  and 
was  not  their  fault.  They  have  presented  the  records 
of  the  State  found  in  its  archives;  and  these  show 
that  the  act  of  the  Governor  was  grossly  wrong ;  and 
they  have  also  presented  the  certificate  of  the  Secretary 
of  State  under  the  great  seal  of  the  State,  conclusively 
showing  their  election.  They  have  also  shown  by 
their  own  affidavit,  that  they  applied  to  the  Governor 
for  his  certificate  and  that  he  refused  it.  I  think  their 
credentials,  under  the  circumstances,  are  sufficient. 

It  is  urged  that  the  distinction  made  between  this 
case,  and  that  of  Florida  and  Louisiana  is  technical 
and  will  not  give  public  satisfaction.  My  belief  is  that 
when  the  public  come  to  understand  (as  they  will  do 
in  time)  that  the  decision  come  to  is  founded  on  the 
Constitution  and  the  laws,  they  will  be  better  satisfied 
than  if  we  should  attempt  to  follow  the  clamor  of  the 
hour.  The  sober  second  thought  of  the  people  of  this 
country  is  in  general  correct.  But,  whilst  the  public 
satisfaction  is  always  desirable,  it  is  a  poor  method  of 
ascertaining  the  law  and  the  truth,  to  be  alert  in 
ascertaining  what  are  the  supposed  wishes  of  the  pub- 
lic. And  as  to  deciding  the  case  on  technicalities,  I  do 
not  know  that  technicalities  are  invoked  on  the  one 
side  more  than  on  the  other.  In  drawing  the  true 
boundary  line  between  conflicting  jurisdictions  and 
establishing  certain  rules  for  just  decision  in  such  cases 


OPINIONS   IN    ELECTOR AI*   COMMISSION.  209 

as  these,  it  is  impossible  to  avoid  a  close  and  search- 
ing scrutiny  of  written  constitutions  and  laws.  The 
weight  due  to  words  and  phrases  has  to  be  observed, 
as  well  as  the  general  spirit  and  policy  of  public  docu- 
ments. Careful  and  exact  inquiry  becomes  a  necessity. 
And  in  such  a  close  political  canvass  as  this,  in  which 
the  decision  of  a  Presidential  election  may  depend  not 
only  on  a  single  electoral,  but  a  single  individual 
vote,  the  greatest  strain  is  brought  to  bear  on  every 
part  of  our  Constitutional  machinery,  and  it  is  impos- 
sible to  avoid  a  close  examination  of  every  part. 
There  is  a  natural  fondness  for  solving  every  doubt 
on  some  "broad  and  general  view"  of  the  subject 
in  hand.  "  Broad  and  general  views  "  when  entirely 
sound,  and  clearly  applicable,  are  undoubtedly  to  be 
preferred  ;  but  it  is  extremely  easy  to  adopt  broad  and 
general  views  that  will,  if  adhered  to,  carry  us  into 
regions  of  error  and  absurdity.  The  only  rule  that  is 
always  and  under  all  circumstances  reliable  is  to  ascer- 
tain, at  whatever  cost  of  care  and  pains,  the  true  and 
exact  commands  of  the  Constitution  and  the  laws, 
and  implicitly  to  obey  them. 


210  MISCELLANEOUS   WRITINGS. 

IV.— SOUTH  CAROLINA  CASE. 

It  is  not  pretended  that  the  votes  of  the  Tilden 
electors  as  presented  in  certificate  No.  2,  in  this  case, 
are  legal.  The  entire  controversy  arises  upon  the 
objections  to  certificate  No.  1,  containing  the  votes  for 
Hayes  and  Wheeler. 

These  objections  are— 

FIRST.— That  the  November  election  in  South  Caro- 
lina was  void  because  the  legislature  of  that  State  has 
never  passed  a  registration  law  as  required  by  the 
constitution  of  the  State,  Article  VIII.,  Section  3, 
which  is  as  follows  :  "  It  shall  be  the  duty  of  the  gen- 
eral assembly  to  provide  from  time  to  time  for  the 
registration  of  all  electors."  This  constitution  was 
passed  in  1868,  and  from  that  time  to  this,  elections 
have  been  held,  and  the  various  elective  officers  of  the 
State,  as  well  as  the  office  of  Representatives  in  Con- 
gress, have  been  filled  without  a  registration  law  hav- 
ing been  passed.  If  the  effect  of  the  omission  has 
been  to  render  all  these  elections  absolutely  void, 
South  Carolina  has,  for  some  years,  been  without  any 
lawful  government.  But  if  the  effect  has  only  been  to 
render  the  elections  voidable,  without  affecting  the 
validity  of  the  acts  of  the  government  in  its  vari- 
ous departments,  as  a  government  de  facto,  then 
the  election  of  Presidential  electors  and  their  giv- 
ing their  votes,  have  the  same  validity  as  all  other 
political  acts  of  that  body  politic.  But,  in  my 
opinion,  the  clause  of  the  constitution  in  question 
is  only  directory,  and  cannot  affect  the  validity  of 
elections  in  the  State,  much  less  the  official  acts  of 
the  officers  elected.  The  passage  of  a  registration  law 


OPINIONS  IN   ELECTORAL   COMMISSION.  211 

was  a  legislative  duty  which  the  members  on  their 
oaths  were  bound  to  perform.  But  their  neglect  to 
perform  it  ought  not  to  prejudice  the  people  of  the 
State. 

The  objection  that  it  does  not  appear  by  the  cer- 
tificate that  the  electors  voted  by  ballot,  or  that  they 
took  an  oath  of  office  as  required  of  all  officers  in 
South  Carolina  are  so  formal  and  manifestly  frivolous, 
that  I  shall  not  discuss  them.  The  presumption  is 
that  all  due  formalities  were  complied  with. 

The  only  objections  of  any  weight  are  those  which 
charge  that  there  was  such  anarchy  and  disturbance 
in  the  State  during  the  elections,  and  such  interference 
of  United  States  troops  and  others  therewith,  that  no 
valid  election  was  held  in  the  State,  and  it  is  impossi- 
ble to  know  what  the  will  of  the  State  was.  This  is 
placing  the  objections  and  the  offer  of  proof  to  sup- 
port them,  in  their  strongest  light. 

I  think  it  is  unquestionably  true,  that  such  a  state 
of  things  as  the  objection  contemplates  ought  to  exclude 
any  vote  purporting  to  come  from  the  State ;  for  no 
such  vote  can  be  regarded  as  expressing  the  will  of  the 
State.  But  that  is  not  the  only  question  to  be  consid- 
ered. 

The  first  and  great  question  is,  as  to  the  Constitu- 
tional power  of  the  two  Houses  of  Congress,  when 
assembled  to  count  the  votes  for  President  and  Yice- 
President,  to  institute  an  investigation  by  evidence 
such  as  is  necessary  to  determine  the  facts  to  be 
proved.  This  power  of  canvassing  the  electoral  votes 
is  constantly  confounded  with  that  of  canvassing  the 
votes  by  which  the  electors  themselves  were  elected— 
a  canvass  with  which  Congress  has  nothing  to  do. 


212  MISCELLANEOUS    WRITINGS. 

This  belongs  to  the  jurisdiction  of  the  States  them- 
selves, and  not  to  Congress.  All  that  Congress  has 
to  do  with  the  subject  is*  to  ascertain  whether  the 
State  has,  or  has  not,  appointed  electors — an  act  of  the 
State  which  can  only  be  performed  by  and  through  its 
own  constituted  authorities. 

It  seems  to  be  also  constantly  overlooked  or  for- 
gotten, that  the  two  Houses,  in  their  capacity  of  a 
convention  for  counting  the  electoral  votes,  have  only 
a  special  and  limited  jurisdiction.  They  are  not  at  all 
invested  with  that  vast  and  indefinite  power  of  inquisi- 
tion which  they  enjoy  as  legislative  bodies.  Until  met 
for  the  specific  purpose  of  the  count,  they  have  no 
power  over  the  subject,  except  to  pass  such  laws  as  it 
is  competent  for  the  legislative  branch  of  the  Govern- 
ment to  pass.  The  electoral  votes  are  in  sealed 
packages,  over  which  the  two  Houses  have  no  control. 
They  have  not,  constitutionally,  any  knowledge  of 
these  until  they  are  opened  in  their  presence.  Their 
jurisdiction  over  the  subject  of  the  count,  and  the 
votes  and  the  appointment  of  electors,  commences  at 
that  moment.  They  have  no  power  before  this  to 
make  investigations  affecting  the  count.  Could  it 
have  been  in  the  contemplation  of  the  Constitution 
that  the  two  Houses,  after  commencing  the  count, 
should  institute  such  an  investigation  as  the  objectors 
propose — involving  (as  it  would  be  likely  to  do)  many 
weeks  in  the  process  ?  It  seems  to  me  impossible  to 
come  to  such  a  conclusion. 

When  the  state  of  things  in  a  State  is  of  such  a  public 
character  as  to  be  within  the  judicial  knowledge  of  the 
two  Houses,  of  course,  they  may  take  notice  of  it, 
and  act  accordingly— as  was  done  in  the  times  of 


OPINIONS   IN    ELECTORAL    COMMISSION.  213 

secession  and  the  late  civil  war— or  as  might  have  been 
done  at  any  time,  so  long  as  the  seceding  States  were 
not  in  harmonious  relations  with  the  general  Govern- 
ment. But  when  a  State  is  in  the  enjoyment  of  all 
those  relations,  when  it  is  represented  in  both  Houses 
of  Congress,  is  recognized  by  the  other  departments  of 
the  Government,  and  is  known  to  have  a  government 
republican  in  form— in  other  words,  when  all  the  public 
relations  of  the  State  are  the  same  as  those  of  all  the 
other  States,  how  can  the  two  Houses  in  convention 
assembled  (and  assembled  for  such  special  purpose),  go 
into  an  investigation  for  the  purpose  of  ascertaining  the 
exact  state  of  things  within  the  State,  so  as  to  decide 
the  question  (perhaps  a  very  nice  question  to  be 
decided),  whether  the  tumults  and  disorders  existing 
therein  at  the  time  of  the  election,  or  the  presence  of 
the  troops  sent  there  by  the  President  for  the  preser- 
vation of  the  public  peace,  had  such  an  influence  as  to 
deprive  the  State  of  its  autonomy  and  the  power  of 
expressing  its  will  in  the  appointment  of  electors  ? 
Such  an  investigation,  or  one  of  any  such  character 
and  extent,  was  surely  never  contemplated  to  be  made 
whilst  the  votes  were  being  counted. 

That  South  Carolina  is  a  State,  and  that  she  has 
a  republican  form  of  government,  are  public  facts  of 
which  the  two  Houses  (and  we  in  their  stead)  must 
take  judicial  notice.  We  know  that  she  is  such  a  State. 
That  she  is  capable  of  preserving  the  public  order, 
either  with  or  without  the  aid  of  the  federal  authority  ; 
and  that  the  executive  interference,  if  made  at  all,  was 
made  in  the  exercise  of  his  proper  authority,  for  the 
reasons  set  forth  in  his  public  proclamations  and 
orders,  are  facts  to  be  presumed.  At  all  events,  the 


214  MISCELLANEOUS   WRITINGS. 

two  Houses,  under  their  special  authority  to  count 
the  electoral  votes,  are  not  competent  to  take  evidence 
to  prove  the  contrary. 

I  do  not  doubt  that  Congress,  in  its  legislative 
capacity,  with  the  President  concurring,  or  by  a  two- 
thirds  vote  after  his  veto,  could  pass  a  law  by  which 
investigation  might  be  had  in  advance,  under  proper 
regulations  as  to  notice  and  evidence  and  the  cross- 
examination  of  witnesses  ;  the  results  of  which  could 
be  laid  before  the  two  Houses  at  their  meeting  for  the 
count  of  votes,  and  could  be  used  by  them  as  a  basis 
for  deciding  whether  such  a  condition  of  anarchy,  dis- 
turbance and  intimidation  existed  in  a  State  at  the 
time  of  the  election  of  its  electors,  as  to  render  its  vote 
nugatory,  and  liable  to  be  rejected.  But  without  the 
existence  of  a  law  of  this  sort,  it  is,  in  my  judgment, 
impracticable  and  unconstitutional  for  the  two  Houses 
to  attempt  the  decision  of  such  a  question.  The 
investigations  made  by  legislative  committees,  in  the 
loose  manner  in  which  they  are  usually  made,  are 
not  only  not  adapted  to  the  proper  ascertainment  of 
the  truth  for  such  a  purpose,  but  are  totally  unauthor- 
ized by  the  Constitution.  As  methods  of  inquiry  for 
ordinary  legislative  purposes,  or  for  the  purpose  of 
laying  the  foundation  of  resolutions  for  bringing  in  an 
impeachment  of  the  President  for  unconstitutional 
interference,  of  course  they  are  competent ;  but  not  for 
the  purpose  of  receiving  or  rejecting  the  vote  of  a 
State  for  the  Presidential  office.  They  are  not  made 
such  by  any  Constitutional  provision  or  by  any  law. 
Legislation  may  be  based  on  the  private  knowledge  of 
members,  and  a  resolution  to  bring  in  an  impeachment 
may  rest  on  ex-parte  affidavits  or  on  general  informa- 


OPINIONS   IN    ELECTORAL   COMMISSION.  215 

tion  ;  and,  therefore,  the  evidence  taken  by  a  commit- 
tee cannot  be  decreed  incompetent  for  such  a  purpose ; 
but  is  often  of  great  service  in  giving  information  to 
the  Houses  as  legislative  bodies,  and  to  the  House  of 
Representatives  as  the  grand  inquest  of  the  nation. 
But  the  decision  to  receive  or  reject  the  vote  of  a 
State,  is  a  final  decision  on  the  right  of  the  State  in 
that  behalf,  and  one  of  a  most  solemn  and  delicate 
nature ;  and  cannot  properly  be  based  on  the  deposi- 
tions of  witnesses  gathered  in  the  drag-net  of  a  Con- 
sional  committee. 

For  these  reasons  I  am  clear  that  the  evidence 
offered  in  support  of  the  objections  made  to  the  elec- 
toral votes  of  South  Carolina  cannot  be  received. 

These  are,  in  brief,  the  views  which  I  entertain  in 
reference  to  this  case  ;  and  under  them,  I  am  forced  to 
the  conclusion  that  the  objections  made  to  the  votes 
given  by  the  electors  certified  by  the  Governor  of  the 
State,  and  the  evidence  offered  in  support  of  the  same, 
are  insufficient ;  and  that  the  said  votes  ought  to  be 
counted. 


ELECTORAL  COMMISSION. 


Mr.  Black's  article  in  the  North  American  Re- 
view on  the  Electoral  Commission  of  1877  is  per- 
vaded by  an  entire  disregard  of  two  fundamental 
truths,  which  furnish  a  complete  answer  to  his  argu- 
ment. The  first  is,  that  the  United  States  is  a 
government  of  law  and  not  a  democracy.  The  second 
is,  that  the  several  States,  and  not  the  general  Gov- 
ernment, have  the  appointment  of  electors  of  President 
and  Vice-President,  and  are  the  sole  judges  of  their 
appointment. 

Mr.  Black  assumes  that  the  popular  vote  was  in 
favor  of  Tilden  and  Hendricks  and  against  Hayes  and 
Wheeler.  Conceding  that  this  may  have  been  true, 
yet  if  a  majority  of  the  electors  were  in  favor  of 
Hayes  and  Wheeler,  the  latter  were  constitutionally 
elected. 

If  the  United  States  were  a  pure  democracy,  the 
mere  count  of  hands  would  decide  all  questions  abso- 
lutely, without  regard  to  the  wisdom  or  justice  of 
the  decision.  It  would  make  laws  as  well  as  elect 
officers.  It  would  be  an  absolute  test  of  civil  right 
and  wrong,  and,  of  course,  what  is  right  and  wrong 
would  depend  on  the  absolute  truth  of  the  count.  If 
the  vote  of  one  Louisiana  negro,  or  of  one  New  York 
rough,  were  omitted,  it  might  wholly  turn  the  scale. 
The  discovery  of  such  an  omission  at  any  time  would 
change  the  result.  A  law  might  stand  .for  a  year  and 


218  MISCELLANEOUS   WRITINGS. 

then  be  subverted ;  a  President  might  act  as  such  for 
three  years,  and  then  be  unseated  on  the  discovery  of 
the  supposed  mistake.  Such  discovery,  it  is  true, 
would  depend  on  human  testimony,  which  is  some- 
times fallible  and  sometimes  corrupt ;  no  matter  for 
that,  as  it  is  the  only  guide,  the  consequence  must 
follow.  The  principles  of  pure  democracy  would 
demand  it. 

A  government  regulated  by  law  is  conducted  on 
different  principles.  Under  such  a  government  a  mat- 
ter sometimes  becomes  settled.  If  a  court  of  last 
resort  decides  a  controversy  the  decision  stands.  If 
an  election  is  held  and  decided  according  to  law,  there 
is  an  end  of  the  matter.  In  the  one  case,  as  in  the 
other,  mistakes  may  be  made  in  fact.  But  the  law 
does  not  tolerate  a  change.  It  deems  certainty,  security 
and  peace  preferable  to  eternal  contention.  It  regards 
some  things  as  settled  and  not  to  be  disturbed.  It  pro- 
vides all  reasonable  opportunities  of  scrutiny  and 
review,  but  imposes  an  end  to  controversy  somewhere. 
It  recognizes  fallibility  and  mistake  to  a  certain  extent, 
but  beyond  all  that,  demands  that  its  decisions  shall 
be  accepted  as  infallible. 

Again,  in  gathering  up  the  results  of  the  public 
will,  it  proceeds  by  rules  adopted  and  laid  down  before- 
hand. These  rules  are  regarded  as  wholesome  restraints 
on  faction,  and  on  corrupt  influences  of  all  kinds.  To 
carry  out  these  rules,  it  appoints  public  agents,  officers 
and  tribunals.  Their  action,  subject  to  regular  pro- 
cesses of  correction  (which  are  also  prescribed)  are 
received  as  definitive.  With  all  its  imperfections,  this 
system  is  regarded  better  than  anarchy,  which  would 
follow  the  want  of  it. 


ELECTORAL    COMMISSION.  219 

It  cannot  be  doubted  that  the  division  of  a  State 
into  small  constituencies,  each  acquainted  with  its 
own  wants  and  its  own  men,  is  a  wise  feature  in  a 
constitution.  These  constituencies  often  choose  a 
different  majority  of  representatives  from  that  which 
would  be  chosen  by  a  general  vote  of  the  whole  popu- 
lation. The  State  of  New  York  has  one  hundred  and 
twenty-eight  legislative  districts,  each  entitled  to  a 
representative.  A  majority  of  these  constituencies 
may  be  republican,  whilst  a  majority  of  all  the  voters 
in  the  State  may  be  democratic.  This  would  arise 
from  a  large  body  of  democratic  voters  being  crowded 
into  a  locality — say  the  City  of  New  York.  Still  the 
arrangement  of  constituencies  is  a  wise  one,  though 
an  artificial  one.  There  is  no  reason  to  suppose  that 
the  State  would  be  any  better  governed  if  the  Irish 
vote  of  the  city  should  control  the  policy  of  the  whole 
State,  than  it  would  if  the  majority  of  the  constituen- 
cies controlled  it. 

Our  whole  governmental  system  is  an  artificial 
one,  regulated  and  controlled  by  law ;  and  it  is  this 
very  feature  of  our  government  which  secures  public 
safety  and  order,  and  which,  if  anything  can,  will  give 
perpetuity  to  our  republican  institutions.  It  is  not 
the  roar  of  mere  numbers,  but  the  still,  strong  voice 
of  an  organized  community,  which  expresses  the  power, 
the  wisdom  and  the  dignity  of  a  people. 

STOWE,.  1877. 


220  MISCELLANEOUS    WRITINGS. 

REPLY  TO  CHARGES  AS  TO  CONDUCT  AS  MEMBER  OF 
ELECTORAL  <  COMMISSION. 

[ATewart  Daily  Advertiser,  Wednesday  Evening,  September  5,  1877.] 
JUSTICE  BRADLEY  SPEAKS. 

We  have  just  received  the  following  prompt  and 
manly  letter  from  Mr.  Justice  Bradley,  which  so  fully 
and  completely  explains  itself  that  it  needs  no  further 
comment.  It  comes  from  his  summer  retreat  at  Stowe, 
Vt.,  and  though  no  vindication  of  his  course  in  the  Elec- 
toral Commission,  of  which  he  was  the  most  conspic- 
uous member,  seemed  called  for  by  those  who  were 
familiar  with  all  the  facts,  yet  the  injustice  of  the 
rumor  that  has  recently  been  circulated,  has  prompted 
him  to  stamp  it  as  basely  false,  and  he  does  so  with 
an  emphasis  of  conscious  rectitude  that  leaves  no 
ground  for  mistake.  His  statement  confirms  what  we 
took  occasion  to  say  on  authority  of  almost  equal 
responsibility  as  his  own. 

STOWE,  Vt.,  Sept.  2,  1877. 

EDITOR  OF  THE  Advertiser:—!  perceive  that  the 
New  York  Sun  has  reiterated  its  charge  that  after 
preparing  a  written  opinion  in  favor  of  the  Tilden 
electors  in  the  Florida  case,  submitted  to  the  Electoral 
Commission,  I  changed  my  views  during  the  night 
preceding  the  vote,  in  consequence  of  pressure  brought 
to  bear  upon  me  by  Republican  politicians  and  Pacific 
Railroad  men,  whose  carriages,  it  is  said,  surrounded 
my  house  during  the  evening.  This,  I  believe,  is  the 
important  point  of  the  charge.  Whether  I  wrote  one 
opinion,  or  twenty,  in  my  private  examination  of  the 


ELECTORAL    COMMISSION.  221 

subject,  is  of  little  consequence,  and  of  no  concern  to 
anybody,  if  the  opinion  which  I  finally  gave  was  the 
fair  result  of  my  deliberations,  without  influence  from 
outside  parties.  The  above  slander  was  published 
some  time  since,  but  I  never  saw  it  until  recently,  and 
deemed  it  too  absurd  to  need  refutation.  But  as  it  is 
categorically  repeated,  perhaps  I  ought  to  notice  it. 
The  same  story  about  carriages  of  leading  Republi- 
cans, and  others,  congregating  at  my  house,  was  cir- 
culated at  Washington  at  the  same  time,  and  came  to 
the  ears  of  my  family,  only  to  raise  a  smile  of  con- 
tempt. The  whole  thing  is  a  falsehood.  Not  a  single 
visitor  called  at  my  house  that  evening ;  and  during 
the  whole  sitting  of  the  Commission,  I  had  no  private 
discussion  whatever  on  the  subjects  at  issue  with  any 
person  interested  on  the  Republican  side,  and  but  very 
few  words  with  any  person.  Indeed,  I  sedulously 
sought  to  avoid  all  discussion  outside  the  Commission 
itself.  The  allegation  that  I  read  an  opinion  to 
Judges  Clifford  and  Field  is  entirely  untrue.  I  read 
no  opinion  to  either  of  them,  and  have  no  recollection 
of  expressing  any.  If  I  did,  it  could  only  have  been 
suggestively,  or  in  a  hypothetical  manner,  and  not 
intended  as  a  committal  of  my  final  judgment  or 
action.  The  question  was  one  of  grave  importance, 
and,  to  me,  of  much  difficulty  and  embarrassment.  I 
earnestly  endeavored  to  come  to  a  right  decision,  free 
from  all  political  or  other  extraneous  considerations. 
In  my  private  examination  of  the  principal  question 
(about  going  behind  the  returns),  I  wrote  and  re-wrote 
the  arguments  and  considerations  on  both  sides  as 
they  occurred  to  me,  sometimes  being  inclined  to  one 
view  of  the  subject,  and  sometimes  to  the  other.  But 


222  MISCELLANEOUS   WRITINGS. 

finally  I  threw  aside  these  lucubrations,  and,  as  you 
have  rightly  stated,  wrote  out  the  short  opinion  which 
I  read  in  the  Florida  case  during  the  sitting  of  the 
Commission.  This  opinion  expresses  the  honest  con- 
clusion to  which  I  had  arrived,  and  which,  after  a  full 
consideration  of  the  whole  matter,  seemed  to  me  the 
only  satisfactory  solution  of  the  question.  And  I 
may  add,  that  the  more  I  have  reflected  on  it  since, 
the  more  satisfied  have  I  become  that  it  was  right. 
At  all  events,  it  was  the  result  of  my  own  reflections 
and  consideration,  without  any  suggestion  from  any 
quarter,  except  the  arguments  adduced  by  counsel  in 
the  public  discussion,  and  by  the  members  of  the  Com- 
mission in  its  private  consultations. 

As  for  the  insinuations  contained  in  a  recent  article, 
published  in  a  prominent  periodical  by  a  noted  politi- 
cian,* implying  that  the  case  was  decided  in  conse- 
quence of  a  political  conspiracy,  I  can  only  say  (and 
from  the  peculiar  position  I  occupied  on  the  Commis- 
sion I  am  able  positively  to  say)  that  it  is  utterly 
devoid  of  truth,  at  least,  so  far  as  the  action  of  the 
Commission  itself  was  concerned.  In  that  article  the 
writer  couples  my  name  with  the  names  of  those  whom 
he  supposes  obnoxious  to  public  odium.  The  decencies 
of  public  expression,  if  nothing  more,  might  well  have 
deterred  so  able  a  writer  from  making  imputations 
which  he  did  not  know  to  be  well  founded. 

Yours  respectfully, 
(Signed)         JOSEPH  P.  BRADLEY. 

*  Judge  Jeremiah  S.  Black. 


ELECTORAL    COMMISSION.  223 

ELECTORAL  COMMISSION. 

The  abuse  heaped  upon  me  by  the  Democratic  press, 
and  especially  the  New  York  Sun,  for  the  part  I  took 
in  the  Electoral  Commission,  appointed  to  decide  the 
controverted  questions  which  arose  upon  the  Presi- 
dential election  of  1876-7,  is  almost  beyond  concep- 
tion. Malignant  falsehoods  of  the  most  aggravated 
character  were  constantly  published.  I  bore  these 
things  in  silence  until  it  was  stated  that  Judge  Field 
had  said,  in  conversation,  that  I  had  changed  my 
mind  during  the  sitting  of  the  Commission,  and  that 
I  had  first  written  an  opinion  in  favor  of  Tilden,  and 
had  read  it  to  him  and  Judge  Clifford.  When  this 
story  appeared  the  Judge  was  in  California  and  I  was 
spending  my  vacation  at  Stowe,  Vt.  I  immediately 
wrote  to  him,  calling  his  attention  to  these  charges. 
He  replied,  denying  that  he  used  the  expressions  attrib- 
uted to  him,  and  had  said  nothing  derogatory  to  my 
honor  or  integrity. 


LAW, 


NATURE  AND  OFFICE 


BOND   AND  BASIS  OF  CIVIL  SOCIETY. 


INTRODUCTORY  LECTURE 

TO    THK 

Law  Department  of  the  University  of  Pennsylvania, 
WEDNESDAY,  OCTOBER  IST,  1884, 

BY 

JOSEPH  P.  BRADLEY, 

Justice  of  the  Supreme  Court  of  the  United  States. 


Quare  quum  lex  sit  civilis  societatis  vinculum,  jus  autetn  legis  aequale, 
QUO  jura-  societas  civium  teneri  potest,  quum  par  non  sit  condicio  civium  ? 
.    .     .     Quid  est  enim  civitas  nisi  juris  societas? — Cic.  de  Repub.  I.  32. 


LECTURE    ON   LAW.  227 

PHILADELPHIA,  October  11,  1884. 
Hon.  JOSEPH  P.  BRADLEY. 

DEAR  SIR  : — The  committee  appointed  for  that  purpose  by  the 
Students  of  the  Law  Department  of  the  University  of  Pennsylvania, 
wish  to  express  to  you  their  appreciation  of  the  address  delivered 
before  them  on  the  ist  instant,  and  also  to  respectfully  request  that  you 
will  lend  to  them  your  manuscript  in  order  that  it  may  be  printed. 
Hoping  that  you  will  give  this  request  a  favorable  consideration,  we 

are, 

Very  respectfully  yours, 

JOSEPH  S.  CLARK,  Chairman, 
LUKE  D.  BECHTEL, 
GEORGE  H.  CHESTERMAN, 
F.  S.  PHILLIPS, 
HENRY  C.  TODD, 

Committee. 


WASHINGTON,  October  13,  1884. 
GENTLEMEN : 

I  have  duly  received  your  kind  letter  written  as  a  committee  of 
the  Students  of  the  Law  Department  of  the  University  of  Pennsyl- 
vania, asking  for  a  copy,  for  publication,  of  the  lecture  delivered  by  me 
before  them  on  the  ist  instant.  Duly  acknowledging  this  mark  of 
their  appreciation  of  the  lecture,  I  would  say  that  I  have  no  desire  to 
withhold  it  from  publication,  though  it  was  not  prepared  under  circum- 
stances to  render  it  fit  for  the  test  of  criticism.  In  the  hope,  however, 
that  its  suggestions  may  lead  the  thoughtful  to  a  fuller  and  more 
mature  consideration  of  the  subject  discussed,  I  submit  it  to  your  dis- 
posal. With  kind  wishes  for  the  success  of  yourselves  and  those 
whom  you  represent,  in  the  study  and  pursuit  of  the  noble  profession 
you  have  chosen,  I  am, 

Respectfully  and  truly  yours, 

JOSEPH  P.  BRADLEY. 

Messrs.  Joseph  S.  Clark,  CAm'n,  Luke  D.  Bechtel,  George  H.  Ches- 
terman.  F.  S.  Phillips,  Henry  C.  Todd,  Committee. 


228  MISCELLANEOUS   WRITINGS. 

LECTURE. 

YOUNG  GENTLEMEN  :  An  introductory  lecture  to  a 
course  of  law  is  not  unnaturally  directed  to  a  general 
view  of  the  subject,  its  nature,  the  principles  on  which  it 
is  founded,  its  relations  to  other  departments  of  knowl- 
edge, the  proper  methods  of  its  study,  and  the  aims 
which  the  student  should  have  in  view.  To  these 
heads,  or  some  of  them,  I  shall  endeavor  to  direct 
your  attention  on  this  occasion. 

First  of  all,  we  ought  to  have  a  clear  conception 
of  the  subject  itself— law — what  it  is,  and  what  is  its 
office  and  use  in  human  affairs.  Perhaps  the  imagina- 
tion would  be  more  impressed  by  picturing  to  our- 
selves the  absence  of  law,  than  by  attempting  to 
describe  its  operation  and  effect.  Suppose  an  omnip- 
otent edict  should  presently  go  forth,  abolishing  all 
law ;  what  would  be  the  condition  of  things  in  this 
city  ?  A  would  walk  into  B's  banking  house  and  take 
from  his  box  or  safe  any  amount  of  money  that  his  fancy 
dictated,  unless  B,  by  superior  strength,  could  protect 
his  possesions.  In  like  manner,  C  would  enter  D's 
store,  and  take  such  articles  as  he  chose,  unless  D 
could  prevent  him  by  force.  Your  neighbor,  being  in 
want  of  books  for  his  library,  could  take  from  yours 
whatever  he  needed,  and  any  clothes  from  your  ward- 
robe which  might  strike  his  fancy.  The  first  bully  you 
might  meet  on  the  sidewalk  could  strike  you  down 
with  impunity,  either  for  the  purpose  of  indulging  in 
sheer  malice  and  wickedness,  or  of  possessing  himself 
of  any  valuables  about  your  person.  You  might,  at 
any  moment,  be  turned  out  of  house  and  home  by 
a  stronger  person  who  fancied  your  luxurious  and 


LECTURE   ON    LAW.  229 

elegant  surroundings.  There  would  be  no  such  thing 
as  property,  or  debts,  or  securities.  Everything  would 
lie  in  possession,  and  that  would  go  to  the  strongest. 
Any  association  of  good  men,  entered  into  for  mutual 
protection,  would  be  so  far  the  establishment  of  law, 
and  would  be  contrary  to  the  supposed  edict  abolish- 
ing it.  Society  would  be  dissolved  and  ended.  Society 
cannot  exist  without  law.  Law  is  the  bond  of  society  ; 
that  which  makes  it ;  that  which  preserves  it  and 
keeps  it  together.  It  is,  in  fact,  the  essence  of  civil 
society. 

DEFINITION    OF    LAW.       WHAT   IT   IS. 

And  now  that  we  see  what  law  accomplishes,  and 
what  would  be  the  effect  of  its  abolition,  we  may  pro- 
ceed to  a  definition  of  it.  Blackstone  says  that 
municipal  or  civil  law  is  a  rule  of  civil  conduct,  pre- 
scribed by  the  supreme  power  in  a  State,  commanding 
what  is  right  and  prohibiting  what  is  wrong.  I  would 
rather  say  that  it  is  those  rules  and  regulations  which 
the  inhabitants  of  a  particular  country  or  territory 
adopt  and  enforce  for  the  establishment  and  main- 
tenance of  civil  government,  the  preservation  of 
social  order,  the  distribution  of  justice,  and  the 
advancement  of  the  general  good  ;  or,  it  is  that  body 
of  rules  which  a  political  society  enforces  by  physical 
power  for  the  protection  of  its  members,  in  their  per- 
sons and  property,  and  the  promotion  of  their  happi- 
ness. Whatsoever  rule  of  conduct  is  not  enforced  by 
the  physical  power  of  society  is  not  law.  It  may  be  a 
rule  of  morals,  or  of  courtesy,  or  of  honor  ;  but  it  is 
not  law.  That  conduct  which  the  State  requires  of 
its  citizens,  or  those  within  its  jurisdiction  (who  are 


230  MISCELLANEOUS  WRITINGS. 

quasi  citizens  for  the  time  being),  and  which  it  regards 
as  of  sufficient  consequence  to  enforce  by  its  physical 
power,  is  civil  conduct,  and  the  rules  by  which  it  is 
prescribed  constitute  the  law  of  that  State.  It  matters 
not  how  it  came  to  be  the  law,  whether  it  was  pre- 
scribed by  an  autocrat  or  a  legislative  body,  or  arose 
from  mere  custom  and  usage,  or  the  decrees  of  the 
courts— if  the  physical  power  of  society,  that  is,  the 
State,  is  put  forth  for  its  vindication,  it  is  law  ;  if  not, 
it  is  not  law.  Sometimes  popular  opposition  to  a  law 
may  prevent  its  execution  and  paralyze  the  power  of 
the  State.  This  produces,  so  far  as  it  extends,  a  relax- 
ation of  the  bonds  of  society  and  a  return  to  a  lawless 
condition,  but  as  soon  as  the  public  power  can  be 
restored,  the  reign  of  law  returns. 

With  the  exception  of  omitting  that  distinguishing 
characteristic  of  law,  its  enforcement  by  the  physical 
power  of  the  State,  Blackstone's  definition  may  be 
logically  correct.  The  law  making  power  is  necessarily 
the  supreme  power  in  a  State  ;  the  rules  it  enforces  are 
presumed  to  be  known,  and  may  therefore  be  said  to 
be  prescribed  ;  and  that  they  command  what  is  right 
and  prohibit  what  is  wrong  is  a  legal  truism,  though 
it  is  also  true  in  a  moral  sense,  inasmuch  as  the  laws 
of  a  State  are  the  final  expression  of  the  nation's  sense 
of  justice  and  political  wisdom,  developed  from  its  his- 
tory and  experience,  and  formulated  by  its  highest 
intelligence.  So  much,  at  least,  may  be  said  of  the 
law,  viewed  in  its  most  mundane  and  prosaic  aspect, 
as  practically  exhibited  in  human  affairs,  without 
attempting  to  scale  those  sublime  heights  from  which 
philosophy  may  take  even  a  more  ennobling  view  of 
the  subject.  Ulpian  defines  justice  (or  law  in  its 


LECTURE    ON   LAW.  231 

essence),  as  "  Cons  tans  et  perpetua  voluntas  jus  suum 
cuique  tribuendi."  And  Richard  Hooker,  a  writer  of 
great  power  and  elegance,  sums  up  his  conclusion  on 
the  subject  as  follows  :  "Of  law  there  can  be  no  less 
acknowledged  than  that  her  seat  is  the  bosom  of 
God,  her  voice  the  harmony  of  the  world  ;  all  things 
in  heaven  and  earth  do  her  homage,  the  very  least  as 
feeling  her  care,  and  the  greatest  as  not  exempted 
from  her  power ;  both  angels  and  men,  and  creatures 
of  what  condition  soever,  though  in  different  sort  and 
manner,  yet  all  with  uniform  consent,  admiring  her 
as  the  mother  of  their  peace  and  joy." 

GENERAL    DIVISION    OF   LAW. 

The  law  extends  not  only  to  the  relations  and  con- 
duct of  individuals  towards  each  other,  but  to  the 
organization  of  society  itself,  its  form  of  government, 
its  public  institutions  and  works,  and  even  to  the 
mutual  relations  between  the  State  and  other  States. 
The  different  subjects  to  which  it  is  thus  extended 
renders  its  division  natural  into  PUBLIC  LAW  and  PRI- 
VATE LAW  ;  and  that  of  public  law  into  international 
law  and  Constitutional  law. 

The  laws  relating  to  crimes  are  generally  regarded 
as  public  law ;  but  it  seems  to  me  that  they  might 
properly  be  considered  as  belonging  respectively  to 
that  branch  of  the  laws,  public  or  private,  which  is 
violated  by  the  commission  of  the  crimes.  A  man  who 
takes  my  property  may  be  a  mere  trespasser  or  a 
thief,  according  to  the  manner  and  intent  with  which 
he  takes  it,  but  it  is  equally  a  private  injury  to  me  ;  pun- 
ishable in  the  one  case  by  damages  for  the  injury,  and 
in  the  other  by  imprisonment  or  corporal  chastisement, 


232  MISCELLANEOUS   WRITINGS. 

with  a  return  of  the  goods,  if  they  can  be  found.  The 
reason  for  calling  the  crime  a  public  offence,  committed 
against  society  itself,  has.,  always  seemed  to  me  too 
metaphysical.  It  is  said  that  a  crime,  especially  if 
it  reaches  the  grade  of  felony,  is  a  violation  of  the 
social  compact,  and  tends  to  dissolve  society ;  or  that 
it  is  an  insult  to  the  majesty  of  the  sovereign ;  but 
this  is  only  in  degree  ;  every  violation  of  law  may  be 
characterized  in  the  same  manner,  and  the  statement 
would  be  true  to  a  certain  extent. 

INTERNATIONAL  LAW  consists  of  those  rules  dictated 
by  natural  justice,  by  long  usage,  or  by  treaties,  which 
form  the  law  of  intercourse  between  the  State  or  nation, 
and  other  States  or  nations.  Though  international, 
it  is  enforced  by  each  individual  nation  as  its  own  law, 
there  being  no  common  judge  to  enforce  it.  And  each 
nation,  on  its  own  responsibility,  puts  its  own  con- 
struction upon  the  law,  at  the  risk  of  a  conflict  with 
other  nations,  if  they  should  construe  it  differently . 
This  law  is  to  be  found  in  the  works  of  those  sages  of 
the  law  who  have  made  international  law  their  special 
study,  and  who  have  become  generally  recognized  as 
authorities.  They  are  sometimes  called  publicists, 
because  international  law  is  regarded  as  public  law 
par  excellence.  Of  this  class  are  Grotius,  Puffendorff 
Bynkershock,  Vattel,  Wheaton,  Phillimore,  and  others. 

There  is  a  branch  of  international  law,  which 
is  called  private  international  law,  which  has  respect 
to  the  rights  and  duties  of  persons  who  have  rela- 
tions personal,  or  by  means  of  property  or  contract 
with  different  countries,  whose  laws  conflict  with  each 
other  in  reference  to  the  matter  in  hand  ;  and  it  is  the 
office  of  private  international  law  to  determine,  accord- 


LECTURE   ON   LAW.  233 

ing  to  the  principles  of  justice,  what  rule  should  be 
followed.  Ordinarily  every  man's  rights  and  duties 
are  determined  by  the  law  of  the  place  where  he  resides. 
But  he  may  be  the  subject  of  some  other  sovereign 
claiming  his  allegiance,  or  he  may  own  property  located 
in  another  country,  or  he  may  have  contracts  made 
or  to  be  performed  there ;  and  it  is  the  province  of 
private  international  law  to  determine  his  rights  and 
duties  in  all  these  cases.  The  validity  and  effect 
which  shall  be  accorded  in  one  country  to  acts  done  in 
another,  such  as  transferring  property,  recovering 
judgments,  constituting  executors,  guardians,  etc.,  is 
a  matter  of  comity  between  the  two  countries  and 
their  tribunals  ;  and  private  international  law  deter- 
mines when  this  comity  should  be  exercised.  A  num- 
ber of  eminent  writers  have  treated  of  this  subject, 
sometimes  under  the  title  of  Conflict  of  Laws,  and 
sometimes  under  that  of  Private  International  Law  ; 
such  as  Savigny,  Story,  and  your  own  learned  towns- 
man, Mr.  Wharton.  Chancellor  Kent,  in  his  Commen- 
taries, touches  briefly,  but  with  masterly  precision, 
the  subject  of  International  Law  in  both  of  its  aspects. 

In  this  age,  when  the  Atlantic  Ocean  has  become  a 
mere  ferry,  and  foreign  intercourse  is  so  common,  and 
in  this  country,  where  forty  independent  commun- 
ities are  so  closely  related  by  business  connections  of 
every  kind,  this  branch  of  internationl  law  is  of  the 
greatest  importance,  and  should  be  carefully  studied 
by  every  American  lawyer. 

CONSTITUTIONAL  LAW  prescribes  the  form  of  gov- 
ernment of  a  State,  its  general  departments  and  their 
functions ;  the  political  divisions  of  its  territory,  and 
'the  duties  and  powers  assigned  to  each ;  the  various 


234  MISCELLANEOUS   WRITINGS. 

kinds  of  delegates  and  officers  to  consult  for  the  pub- 
lic good  and  execute  the  public  will,  and  the  modes  of 
appointing  them ;  in  other,  words,  the  framework  of 
civil  society,  and  the  functions  of  its  several  parts 
The  Constitutional  law  of  a  country  is  sometimes 
written,  sometimes  unwritten,  and  sometimes  partly 
the  one  and  partly  the  other.  In  this  country  it  is 
mostly  written,  partly  in  a  direct  and  formal  act  of 
the  people,  under  the  name  of  a  Constitution,  and 
partly  in  organic  laws  passed  by  the  legislature.  The 
general  grant  of  legislative  power  is  deemed  sufficient 
to  authorize  the  legislative  department  to  extend  the 
organization  of  civil  society  to  details  which  are  not 
provided  for  in  the  outline  drawn  by  the  Constitution 
itself.  Whatever  law  relates  to  a  public  function  is 
Constitutional  in  its  character,  whether  it  defines  the 
power  of  a  governor  or  a  constable,  or  directs  the 
mode  of  passing  laws  or  of  exercising  the  elective 
franchise.  It  touches  the  organization  of  the  body 
politic,  and  that  organization  is,  subjectively,  the  Con- 
stitution of  the  State. 

An  appendix  to  Constitutional  law,  not  generally 
regarded  as  belonging  to  it,  though  relating  to  the 
duties  and  powers  of  public  functionaries,  is  ADMINIS- 
TRATIVE LAW,  which  presides  over  the  establishment 
and  execution  of  those  public  institutions  and  works 
which  are  created  or  carried  on  for  the  benefit  and  pro- 
tection of  society,  such  as  armies,  navies,  fortresses,  sea- 
walls, light-houses,  harbors,  piers,  bridges,  highways, 
railroads,  canals,  mails,  prisons,  hospitals,  poor-houses, 
asylums,  universities,  schools,  and  benevolent  corpora- 
tions, all  of  which,  when  emanating  from  public 
authority  (as  they  mostly  do),  exhibit  the  majesty  of 


LECTURE    ON    LAW.  235 

the  body  politic  in  the  energy  of  beneficent  action, 
aiding,  protecting  and  benefiting  all  its  members  and 
advancing  human  civilization.  This  subject  is  largely 
discussed  by  the  French  lawyers  as  a  separate  branch 
of  public  law,  and  some  of  their  works  are  well  worth 
the  students'  consideration.  Ferriere's  Treatise  on 
Public  and  Administrative  Law  is  a  model  of  clear 
analysis,  and  is  well  worthy  of  being  done  into  English, 
and  studied  in  our  legal  institutions. 

PRIVATE  LAW  consists  of  those  civil  rules  and  reg- 
ulations which  govern  the  private  actions  and  mutual 
relations  and  dealings  of  all  citizens,  and  of  all  other 
persons  subject  to  the  jurisdiction  of  the  State. 
When  we  consider  the  innumerable  relations  and  trans- 
actions which  take  place  amongst  men  in  society,  it  is 
apparent  that  the  laws  must  necessarily  be  extensive 
and  voluminous.  In  the  simple  times  of  old  a  few 
rules  might  have  been  sufficient,  but  in  the  present 
complex  state  of  society,  having  so  many  industries, 
occupations  and  interests,  and  presenting  so  many 
phases  of  human  life,  all  requiring  the  protection  of 
the  laws,  it  is  indeed  wonderful  that  the  civil  law  can 
be  so  all-embracing  and  omnipresent  as  to  reach  and 
provide  for  every  exigency  that  can  arise.  But  it  does 
this  and  does  it  perfectly.  It  does  it  by  means  of  a 
rigid  and  accurate  classification  of  human  relations 
and  acts— a  classification  based  partly  on  nature, 
partly  on  custom,  and  partly  on  instituted  or  volun- 
tary conditions.  The  most  striking  natural  relations 
are  those  of  husband  and  wife  and  parent  and  child  ; 
custom  early  established  those  of  master  and  servant 
and  guardian  and  ward,  and  that  of  magistrate  and 
people  grows  out  of  the  very  construction  of  society. 


236  MISCELLANEOUS    WRITING. 

But  there  are  innumerable  relations  which  men  volun- 
tarily or  involuntarily  assume  towards  each  other, 
either  by  conduct  or  by.  contract.  If  one  injures 
another  in  person,  reputation  or  property,  the  relation 
of  injurer  and  injured  is  established  between  them, 
imposing  upon  one  the  duty  of  satisfaction  for  the 
injury,  and  giving  to  the  other  the  right  to  demand  it. 
If  two  or  more  enter  into  a  contract  (permitted  by 
the  law)  they  mutually  assume  a  contractual  relation 
towards  each  other,  binding  each  to  the  others,  for 
the  performance  of  his  part  of  the  contract,  and  a 
failure  to  perform  involving  the  duty  of  satisfaction 
and  the  right  to  demand  it.  This  is  a  mere  general 
statement  of  what  occurs  every  moment ;  but  the 
variations  of  right  and  duty  growing  out  of  the 
infinite  variety  of  facts  and  shades  of  difference  in 
the  many  cases  that  occur,  render  the  complicated 
mass  of  rules  and  principles  necessary  to  meet  and 
provide  for  all,  forbidding  to  the  beginner.  He  must 
learn  well  the  great  principles  of  justice,  and  the  sys- 
tem of  legal  analysis  and  classification,  and  then  light 
will  begin  to  break  in  upon  the  chaos,  and  all  things 
will  at  last  become  easy  and  plain. 

THE  SUBJECT  MATTER  OF    LAW,  AND  THE  PLACE    WHICH 
ITS  STUDY  OCCUPIES  AMONG    THE  SCIENCES. 

Having  now  described  in  a  general  way,  what  law 
is,  and  what  are  its  objects  and  uses,  and  its  general 
divisions,  let  us  stop  a  moment  and  take  a  little  more 
accurate  survey  of  it  as  a  whole,  as  a  subject  of 
learned  study,  and  as  to  the  place  it  holds  amongst 
the  other  studies  to  which  men  devote  themselves, 
particularly  those  of  a  professional  character. 


LECTURE    ON    LAW.  237 

Every  science,  or  branch  of  human  knowledge,  has 
a  subject  matter  which  it  scrutinizes,  studies,  analyzes 
and  expounds,  as  to  its  substance,  its  accidents,  its 
relations,  causes  and  effects,  and  the  natural  laws 
which  govern  its  manifestations.  The  subject  matter 
of  mathematical  science  is  number  and  figure ;  the 
subject  matter  of  astronomy  is  the  heavenly  bodies, 
and  it  explores  their  nature,  their  appearances,  their 
positions,  their  motions,  and  the  relations  which  they 
have  to  each  other ;  the  subject  matter  of  geology  is 
the  structure  of  the  earth,  which  is  explored  in  its 
various  strata  of  rocks,  their  relative  super-position 
and  age,  their  composition  and  contents,  the  remains 
of  ancient  vegetable  and  animal  life  embedded  in 
them,  and  the  causes  which  have  led  to  their  produc- 
tion ;  the  subject  matter  of  natural  philosophy  is  the 
mechanical  forces  of  nature,  and  the  phenomena  which 
they  produce ;  of  botany,  the  vegetable  kingdom ;  of 
natural  history,  the  animal  kingdom.  Man  himself 
forms  a  subject  of  profound  study ;  his  body,  with  its 
sustentation  and  preservation,  forms  the  subject  of 
physiology  and  medical  science  ;  his  mind  and  its  oper- 
ations, form  the  subject  of  mental  philosophy,  includ- 
ing metaphysics ;  his  language  forms  the  subject  of 
philology,  grammar  and  rhetoric  ;  his  relations  to  his 
Maker,  and  the  unseen  world,  including  his  moral 
relations  to  his  fellow-men,  form  the  subject  of  religion, 
or  religious  philosophy  and  ethics.  All  these  subjects 
present  vast  and  important  fields  of  inquiry,  worthy 
of  profound  study ;  but  none  of  them  exceeds  in 
importance  the  subject  matter  of  the  science  of  law— 
CIVIL  SOCIETY— that  highest  phase  and  outgrowth  of 
humanity,  without  which  men  would  be  but  savages  ; 


238  MISCELLANEOUS   WRITINGS. 

without  which,  unless  hedged  about  by  divine  influ- 
ences in  some  garden  of  Eden,  none  of  the  sweet  and 
beautiful  manifestations  of  human  life  could  possibly 
exist. 

CIVIL  SOCIETY  FORMED  AND  SUSTAINED  BY  LAW  J    WHICH 
IS  ITS  REAL  OFFICE  AND  PURPOSE. 

No  doubt  man  is  naturally  a  social  being.  Certain 
individuals,  it  is  true,  for  the  sake  of  wild  freedom,  or 
from  some  acquired  disgust,  may  prefer  to  wander  away 
from  their  fellows,  and  lead  isolated  lives  ;  but  take 
them  as  a  race,  men  love  company,  and  the  mutual 
support  and  aid,  sympathy,  affection,  and  communi- 
cation by  language,  which  company  gives.  They  pos- 
sess, however,  selfish  passions,  which  are  often  fierce 
and  ungovernable ;  and,  under  the  most  favorable 
circumstances  in  which  they  can  be  placed,  society 
could  not,  for  any  length  of  time,  be  maintained  on 
the  voluntary  principle,  or  under  the  influence  of 
mere  moral  restraints.  There  must  be  government, 
there  must  be  force,  there  must  be  a  civil  organization 
of  some  kind — that  is,  the  organization  of  a  civitas 
or  State,  wielding  the  concentrated  power  of  the 
community.  To  this,  if  not  naturally  led  by  their 
instincts,  men  are  compelled  by  necessity,  as  soon  as 
they  increase  in  numbers  and  possessions.  They  can- 
not separate.  They  must  remain  together,  not  only 
in  obedience  to  their  instincts  of  affection,  communi- 
cation and  sympathy,  but  for  their  mutual  protection 
against  other  bodies  of  men,  who  would  otherwise 
drive  them  from  their  seats,  or  make  them  captives 
to  their  will.  So  that  civil  society  is  a  necessity  of 
our  nature  and  of  the  conditions  by  which  we  are 


LECTURE   ON   LAW.  239 

surrounded.  And  this  is  the  subject  matter  of  our 
science,  taken  in  its  broadest  sense.  It  is  true  that 
the  political  philosopher,  the  political  economist,  the 
statesman,  and  the  legislator,  as  well  as  the  lawyer, 
finds  in  civil  society  the  subject  of  their  studies  and 
investigations;  but  what,  after  all,  is  the  object  of 
their  studies,  but  to  ascertain  what  are  the  best  and 
most  beneficial  laws,  and  how  the  existing  laws  may 
be  improved  for  better  promoting  human  happiness  ? 
and  what  is  this  but  taking  a  more  lofty  and  extended 
view  of  the  law  itself  ?  looking  at  it  in  reference  to  its 
objects  and  uses;  and  thereby  comprehending  more 
perfectly  its  spirit,  its  essence  and  its  application  ?  In 
other  words,  it  shows  us  that  the  profound  student 
of  law  can  never  feel  satisfied  with  his  acquirements 
in  the  science  until  he  is  able  to  take  philosophic  and 
statesmanlike  views  of  the  subject  to  which  it  relates — 
the  order  of  civil  society— and  of  its  bearings  on 
human  happiness. 

We  see,  then,  that  in  approaching  the  study  of  the 
law  we  approach  a  subject  of  living  interest  and 
importance,  independently  of  its  attractions  as  a  pro- 
fessional calling.  It  is  not  merely  dead  books,  and 
their  contents,  that  we  set  about  to  learn,  but  a  living 
thing — civil  society— in  its  organization  and  its  rules, 
under  all  phases  of  human  experience,  human  inter- 
course, human  activity,  and  human  interest. 

The  student  of  medicine  examines  with  minutest 
care  the  subject  matter  of  his  science,  namely,  the 
human  body ;  he  scrutinizes  it  in  all  its  parts ;  the 
functions  of  each  part  and  its  relations  to  the  other 
parts  ;  the  things  that  effect  it  beneficially,  and  those 
that  affect  it  hurtnilly.  It  is  his  study  from  morning 


240  MISCELLANEOUS    WRITINGS. 

to  night  to  ascertain  its  functions,  its  needs,  its  dan- 
gers, its  injuries,  and  the  modes  and  means  of  repair- 
ing them.  So  the  studen.t  of  law,  in  order  to  obtain 
a  profound  conception  of  his  science,  must,  in  like 
manner,  stud}'  deeply  the  subject  matter  of  it— civil 
society — in  its  construction,  its  workings,  its  rules ;  in 
the  solution  of  all  questions  of  civil  right  or  duty  that 
arise  in  every  situation  in  which  a  man  can  be  placed, 
in  every  transaction  in  which  he  may  be  concerned ; 
in  the  prescription  of  the  proper  remedy  for  the  asser- 
tion of  every  right,  and  for  the  prevention  or  redress 
of  every  wrong.  For  the  law  is  everywhere,  and 
extends  to  everything  of  human  interest. 

At  first  view  when  we  walk  about  amongst  our 
fellow-men,  we  may  not  observe  the  omnipotent  influ- 
ence and  controlling  effect  of  the  law.  Its  power  is  so 
subtle  and  all-pervading  that  everything  seems  to  take 
place  as  the  spontaneous  result  of  existing  conditions 
and  circumstances.  It  is  like  gravitation  in  the  natu- 
ral world,  which,  whilst  it  governs  and  controls  every 
movement,  and  produces  all  the  order  of  the  universe, 
is  itself  unseen.  It  must  be  studied  in  its  effects  in 
order  to  understand  its  power.  So  with  law  in  civil 
society.  It  is  over,  under,  in  and  around,  every 
action,  that  takes  place.  Its  silent  reign  is  seen  in  the 
order  preserved,  the  persons  and  property  protected, 
the  sense  of  security  manifested ;  in  the  freedom  of 
intercourse,  in  the  cheerful  performance  of  labor,  in  the 
confidence  with  which  business  is  transacted,  and  trust 
is  reposed  by  one  man  in  another ;  in  the  peaceful  and 
contented  pursuit  of  trades  and  occupations,  and  the 
bestowal  of  services ;  all  goes  on  cheerfully  and 
smoothly,  working  out  and  interworking  the  constant 


LECTURE    ON    LAW.  241 

evolution  of  human  happiness — BECAUSE  OF  the  ever- 
existing  (though  generally  unrecognized)  conscious- 
ness of  the  presence,  the  watchfulness,  and  the 
all-sufficient  protection  of  the  law.  In  ordinary  con- 
duct, conformity  to  its  rules  and  requirements  is  pur- 
sued almost  as  a  second  nature  ;  but  in  transactions 
requiring  authentic  evidence,  greater  knowledge,  per- 
haps professional  skill,  is  required  ;  and  when  questions 
of  ambiguity,  complexity  and  difficulty  arise,  which 
the  parties  themselves  cannot  amicably  solve,  then,  of 
course,  the  skill  of  the  lawyer,  and  perhaps  the  wis- 
dom and  authority  of  the  judge,  must  be  resorted  to. 
But  compared  with  the  millions  of  transactions  which 
take  place,  these  ripples  on  the  surface,  do  not  often 
occur.  The  mighty  river  of  things  generally  moves 
on  with  an  undisturbed  current ;  but  only  because  it 
is  kept  in  its  banks  and  regulated  in  its  course  by 
the  power  of  law. 

THE  ANALYSIS  OF  CIVIL  SOCIETY  AND  OF  THE  TRANSAC- 
TIONS THAT  TAKE  PLACE  THEREIN,  FURNISHES  THE 
MOST  PRACTICAL  GROUND  OF  ANALYSIS  OF  THE  LAWS. 

Since  lav/  is  the  bond  and  basis  of  civil  society, 
and  the  platform  on  which,  and  according  to  which, 
all  civil  transactions  are  conducted  and  regulated,  it 
follows,  that  the  only  analytical  division  of  the  science 
which  is  practically  useful  is,  and  must  be,  largely 
based  upon  an  analysis  of  civil  society,  the  transac- 
tions that  take  place  in  it,  and  the  relations  of  its 
various  members  to  the  whole  and  to  each  other. 

Law  itself,  in  its  essence,  cannot  be  analyzed ;  it 
is  simply  the  dictates  of  justice  in  the  varied  circum- 
stances and  relations  of  life.  Those  circumstances 


242  MISCELLANEOUS   WRITINGS. 

and  relations  may  be  analyzed  and  classified,  and  the 
dictates  of  justice  in  each  case  or  class  of  cases  may 
be  ascertained  and  enunciated.  In  other  words,  not 
the  law,  but  the  subjects  to  which  it  is  applied,  are 
arranged  into  classes  and  under  heads,  and,  having 
found  the  law  applicable  to  each  class  or  head,  we 
speak  as  if  we  had  analyzed  the  law  itself. 

Ulpian,  the  great  Roman  lawyer,  said  (as  Cicero 
had,  substantially,  said  before  him),  that  the  law 
itself  has  only  three  commands,  "  honeste  vivere, 
alterum  non  Isedere,  suum  cuique  tribuere ;"  "live 
rightly,  do  no  wrong  to  another,  give  to  every  one 
his  own  ";  leaving  it  to  be  inferred  that  all  the  rest 
consists  in  the  application  of  these  fundamental  prin- 
ciples to  particular  cases. 

True,  there  are  certain  general  rules  and  maxims 
of  extensive  application,  each  of  which  may  furnish 
the  subject  of  a  chapter  of  law,  showing  how  and  in 
what  cases  and  circumstances  it  is  to  be  applied. 
Thus,  the  rule,  "  sic  utere  tuo,  utnon  alienum  laedas," 
is  constantly  applied  to  hundreds  of  cases  which  it 
would  be  tedious  to  enumerate,  but  the  nature  of 
which  could  be  indicated  by  a  few  examples,  such  as 
this  :  If  you  conduct  a  stream  on  to  your  own  land 
for  the  purpose  of  irrigation,  you  have  no  right  to 
allow  it  to  wet  and  injure  the  land  of  your  neighbor 
lying  below  yours.  The  rule  is  a  rule  of  justice  and 
may  be  treated  of  under  a  head  or  chapter  of  its  own. 
But  a  collection  of  such  general  rules  or  maxims  would 
not  present  a  scientific  arrangement  of  the  law.  They 
would  stand  isolated  from  each  other,  without  com- 
pleteness or  symmetry,  or  any  proper  relation  to,  or 
connection  with  each  other.  Several  authors,  as  Noy, 


LECTURE    ON    LAW.  243 

Wyngate,  Francis  and  Broom,  have  made  collections 
of  these  maxims,  and  have  commented  upon  them  by 
showing  the  manner  in  which,  and  the  kind  of  cases  to 
which,  they  are  severally  applied  ;  and  these  books 
are  very  useful  in  their  way,  and  worthy  of  study ; 
but  they  exhibit  no  analysis  or  arrangement  of  the 
law,  or  the  science  of  law.  To  make  such  an  analysis 
or  arrangement,  we  must  resort,  as  before  stated,  to 
the  subject  matter  of  the  law,  civil  society  and  the 
various  relations  and  transactions  which  it  exhibits. 

There  is  one  general  division,  however,  which  runs 
through  all  the  departments  and  branches  of  the  law, 
which  is  not  based  on  the  subject  matter,  but  rather 
on  the  nature  of  things  ;  it  is  that  which  considers  the 
law  under  the  three  heads  of  Jura,  Injuriae,  Remedia — 
Rights,  Injuries  and  Remedies.  They  might  be  con- 
sidered together,  for  every  injury  is  the  violation  of 
some  right,  and  has  its  appropriate  remedy,  or  choice 
of  remedies.  But  there  are  many  injuries,  or  wrongs, 
which  are  deprivations  of  mere  negative  rights,  and 
the  injuries  themselves  assume  a  distinctive  and  promi- 
nent importance,  making  it  desirable  to  subject  them 
to  a  separate  consideration ;  such  as  most  torts, 
including  trespasses,  assaults,  libels,  slander,  etc. 
And,  again,  the  remedies  of  the  law  have  such  a  gen- 
eral similitude,  and  are  governed  by  such  peculiar 
regulations,  that  they  need  to  be  distinctly  and  sepa- 
rately considered. 

Another  division,  independent  of  the  subject  matter, 
is  that  between  law  and  equity— the  latter  being  a 
particular  modification  of  the  law  in  many  cases 
where  its  strict  general  rules  would  be  inadequate  to 
the  purposes  of  justice.  The  system  of  rules  and  pro- 


244  MISCELLANEOUS   WRITINGS. 

ceedings  which  are  adopted  by  courts  of  equity  for 
effecting  the  desired  modification,  is  treated  of  sepa- 
rately from  the  general  system  of  the  law. 

With  these  exceptions,  and  perhaps  one  or  two 
others  that  have  escaped  me,  the  study  and  science  of 
the  law  is  divided  and  subdivided,  according  to  the 
subjects  to  which  it  is  applied,  and  these  embrace  all 
the  transactions  and  relations  of  society. 

In  the  consideration  of  rights  the  principle  of 
analysis  to  which  I  have  referred  is  at  once  rendered 
manifest.  First  comes  the  Constitution  and  order  of 
the  Commonwealth  itself ;  then,  proceeding  to  private 
law,  we  first  take  up  the  personal  rights  and  duties  of 
individuals,  their  status  as  free  or  servile,  as  husbands 
and  wives,  parents  and  children,  guardian  and  ward, 
corporations,  etc.;  then  comes  up  the  consideration  of 
property ;  and  this  we  divide  into,  first,  real  or 
immovable,  as  land,  and,  second,  personal,  including 
chattels  and  contracts  ;  and  every  contract  furnishes 
a  distinct  head  of  law,  so  that  we  have  the  law  of 
sale,  of  loan,  of  partnership,  of  bills  of  exchange,  of 
promissory  notes,  of  suretyship,  of  insurance,  etc. 
And  when  we  come  to  the  department  of  injuries,  or 
wrongs,  we  find  it  divided  in  like  manner  into  many 
different  heads,  according  to  the  nature  of  the  wrong 
committed,  each  of  which  furnishes  a  distinct  subject 
of  investigation,  and  is  treated  of  in  separate  books, 
as  the  law  of  libel,  the  law  of  slander,  the  law  of 
assault  and  battery  and  trespass,  the  law  of  collisions, 
etc.  In  other  words,  we  find  (what,  from  the  nature 
of  law,  as  we  have  considered  it,  we  should  naturally 
expect  to  find)  that  the  analysis  of  the  laws  is  based 
upon  an  analysis  of  civil  society,  and  the  transactions 
which  take  place  in  it. 


LECTURE   ON    LAW.  245 

IS  THE  KNOWLEDGE  OF  LAW,  OR  JURISPRUDENCE,  A 
SCIENCE  ? 

A  question  often  mooted  is  whether  law  (meaning, 
of  course,  the  knowledge  of  law,  or  jurisprudence)  is 
a  science.  If  it  is  a  science,  it  must  have  some  neces- 
sary and  fixed  principles,  different  from  the  mere  arbi- 
trary regulations  of  a  despotic  will,  which  may  be  one 
thing  or  another,  according  to  the  legislator's  whim. 
The  knowledge  of  such  an  accidental  set  of  rules  could 
certainly  never  be  elevated  to  the  dignity  of  science. 
And  if  law  is  of  that  arbitrary  and  empirical  charac- 
ter, jurisprudence,  or  the  knowledge  of  law,  is  clearly 
not  a  science.  But  law  is  not  arbitrary  and  empirical 
any  more  than  justice  itself  is  so.  Ulpian  declares 
jurisprudence  to  be  "  divinarum  atque  humanarum 
rerum  notitia  ;  justi  atque  injusti  scientia." 

JURISPRUDENCE  A  SCIENCE,  BECAUSE  LAW  IS  A  NATURAL 
OUTGROWTH  OF  HUMANITY,  AND  NOT  A  MERE  ARBI- 
TRARY SET  OF  RULES. 

In  view  of  what  has  already  been  said  with  regard 
to  the  nature  of  law,  it  seems  to  me  clear  that  it  is 
one  of  the  natural  and  inevitable  outgrowths  of 
humanity,  like  language,  like  the  family  relation,  like 
clanship;  I  do  not  say  like  society,  because  society 
and  law  are  so  intimately  connected  that  the  hypoth- 
esis of  one  is  the  hypothesis  of  the  other.  Justice 
and  right,  like  truth,  are  the  same  in  all  countries  and 
amongst  all  peoples ;  and  as  law  is  the  expression  by 
any  particular  people  of  its  sense  of  justice,  it  must 
have  a  natural  law  of  origin  and  growth,  similar  in 
all  States.  Civil  society  is  substantially  the  same 


246  MISCELLANEOUS   WRITINGS. 

thing  in  all  countries,  and  law  being  the  basis  and 
exponent  of  civil  society,  must  exhibit  substantially 
the  same  general  principles  and  the  same  features  in 
all  States.  Each  people  may  have  some  peculiar  insti- 
tutions of  its  own,  arising  from  its  peculiar  circum- 
stances or  genius ;  as,  among  the  warlike  tribes  of 
Europe,  in  the  middle  ages,  land  was  distributed  and 
held  upon  the  tenure  of  military  service,  and  was  made 
to  descend  to  the  eldest  son  as  the  person  most  capable 
of  performing  the  service  required.  Of  course,  it  will 
be  expected  that  the  peculiar  genius  of  a  people  will 
find  expression  in  their  laws ;  but  human  nature  and 
the  great  mass  of  human  actions  are  essentially  the 
same  amongst  all  peoples  ;  and  the  dictates  of  justice 
under  like  circumstances  are  ever  the  same.  Therefore, 
a  system  of  laws  growing  out  of  the  experience  and 
exigencies  of  one  people  may  be  adopted  with  but 
slight  alterations  to  the  experience  and  exigencies  of 
another.  The  laws  of  any  State  in  this  confederacy 
might  easily  be  adapted  to  the  wants  of  the  people  of 
any  other  State.  As  a  matter  of  fact,  the  laws  of 
England  were  adopted  by  all  the  old  States  and  by 
most  of  the  new  ones,  subject  to  such  slight  alterations 
as  their  condition  and  circumstances  rendered  neces- 
sary. And  also,  as  a  matter  of  fact,  the  laws  of  the 
Roman  empire  have  again  and  again  been  drawn 
upon  for  supplying  the  imperfect  system  of  English 
law  with  those  rules  of  justice  and  right  which  had 
been  educed  and  sanctioned  by  ages  of  Roman  civiliza- 
tion. If  we  once  concede  that  law  is  the  voice  of 
Justice,  regulating  the  affairs  of  men  in  civil  society, 
we  cannot  deny  that  it  is,  and  must  be,  based  upon 
uniform  and  permanent  principles,  and  that  it  will  be 


LECTURE   ON   LAW.  247 

evolved  in  substantially  the  same  manner,  and  in  sim- 
ilar formulas,  in  every  community.  And  such  is, 
indeed,  the  fact.  In  hardly  any  community  on  the 
face  of  the  earth  is  it  necessary  for  a  person  to 
be  learned  in  its  laws  in  order  to  live  a  peace- 
able and  quiet  life ;  all  he  has  to  do  is  to  follow  the 
dictates  of  his  conscience,  and  endeavor  to  do  right, 
and  he  will  be  pretty  sure  to  commit  no  offence 
against  the  laws.  If  there  is  one  thing  that  mankind 
will  have  it  is  just  laws.  Society  can  no  more  subsist 
with  unjust  laws  than  it  can  without  any  laws.  Even 
arbitrary  and  despotic  sovereigns,  however  lawless 
themselves,  generally  take  good  care  that  the  people 
shall  have  the  benefit  of  good  laws  for  the  regulation 
of  their  domestic  affairs. 

Law,  then,  being  the  expression  of  man's  sense  of 
ustice  in  the  regulation  of  civil  society,  is  not  an 
arbitrary  and  empirical  set  of  rules ;  but  is  founded 
upon  immutable  and  eternal  principles— the  immutable 
and  eternal  principles  of  justice  and  right.  It  may 
differ  in  mere  form  and  detail  in  different  countries ; 
but  it  is  essentially  the  same  in  all  wherever  civiliza- 
tion prevails. 

It  seems  to  me,  therefore,  that  there  cannot  be  a 
doubt  that  jurisprudence  is  a  science,  and  one  of  the 
grandest  sciences  upon  which  the  human  mind  can  be 
employed.  At  the  same  time,  it  must  be  acknowl- 
edged that  the  light  of  that  science  is  but  faintly 
revealed,  and  only  in  obscure  glimmerings,  to  those 
who  do  not  gaze  profoundly  into  its  depths,  and 
acquire  that  legal  insight  which  only  deep  study  and 
reflection  can  give. 


248  MISCELLANEOUS   WRITINGS. 

THE  ELASTICITY  AND  EXPANSIBILITY  OF  LAW  TO  MEET 
THE  GROWING  WANTS  OF  SOCIETY,  ANOTHER  PROOF 
THAT  JURISPRUDENCE  IS  A  SCIENCE. 

Another  proof  that  law  is  not  an  arbitrary  set 
of  rules,  but  is  an  emanation  of  human  nature,  and 
subject  to  immutable  laws  of  development,  is  the  fact 
that  it  keeps  pace  with  the  growth  and  advancement 
of  society,  and  expands  and  adapts  itself  to  every 
phase  of  social  progress,  whether  in  a  moral  or  a 
material  direction.  The  law  of  to-day  is  as  adequate 
to  the  wants  of  our  advanced  social  and  material 
condition  as  the  law  of  five  centuries  ago  was  to  the 
restricted  life  and  simpler  habits  of  that  period.  And 
this  principle  of  adaptation  and  expansion  is  inherent 
in  the  nature  of  law  and  does  not  depend  upon,  and 
does  not  generally  wait  for,  specific  legislation,  though 
often  aided  and  supported  by  legislation.  It  arises 
from  the  fact  that  law  is  the  expression  of  justice  as 
applied  to  the  transactions  of  society.  As  those  trans- 
actions increase  and  multiply,  they  constantly  demand 
the  application  of  the  rules  of  justice,  or,  as  it  is  some- 
times termed,  the  extension  of  old  principles  (which 
are  nothing  but  the  principles  of  justice)  to  their 
peculiar  conditions,  and  hence  arises  a  new  expres- 
sion of  justice  and  a  new  rule  of  law.  For  it  is  a 
primary  and  fundamental  rule,  that  law  is  founded 
on  reason  and  justice,  and  that  if  no  exact  precedent 
can  be  found  for  deciding  a  case,  it  must  be  decided 
according  to  reason  and  justice  and  the  analogy  of 
previous  cases  most  nearly  resembling  it.  If  a  new 
instrument  of  trade  comes  into  vogue,  for  example,  a 
promissory  note,  it  will  not  be  long  before  general 


LECTURE   ON   LAW.  249 

usage  and  convenience  will  originate  rules  and  regula- 
tions as  to  its  use  and  as  to  the  rights  and  obliga- 
tions arising  upon  it,  which  the  courts  (if  wise  and 
liberal  in  their  views)  will  sanction  as  just  and 
equitable,  and  which  will  soon  acquire  the  force  of 
law.  If  a  new  mode  of  conveyance  and  transpor- 
tation is  invented,  for  example,  a  railroad,  with  its 
steam  locomotives  and  cars,  it  will  not  be  many  years 
before,  by  the  judicial  application  of  the  principles  of 
justice,  already  to  some  degree  exemplified  in  other 
modes  of  travel  and  transportation,  a  code  of  railroad 
law  will  be  built  up,  answerable  to  all  the  requirements 
of  the  new  circumstances.  We  elder  members  of  the 
profession  have  seen  this  very  thing  take  place  in  our 
own  time,  and  could  now  exhibit  to  the  astonished 
eyes  of  our  great  predecessors,  Coke  and  Hale  and 
Holt,  if  they  were  permitted  to  revisit  the  earth, 
almost  entire  systems  of  law  which  they  never 
dreamed  of  as  lying  in  undeveloped  germ  in  the  bosom 
of  that  common  law  which  they  loved  so  well ;  unde- 
veloped then,  because  the  exigeaacies  of  society  had 
not  yet  arisen  which  required  their  elimination  and 
announcement.  And  this  is  the  way  that  the  common 
law  of  any  country  arises  and  is  developed.  It  is  the 
intellectual  form,  the  specific  idea  and  counterpart  of 
the  progress  of  society.  To  stop  this  expansion  of 
the  law  would  be  equivalent  to  stopping  the  growth 
and  advancement  of  society,  and  the  very  pulse  of 
humanity. 

When  this  judicial  adaptation  and  expansion  of 
the  law  becomes  too  slow  for  the  progress  of  events, 
or  would  require  too  violent  a  change,  the  legislature 
interposes  and  enacts  a  new  law  amendatory  of  or 


250  MISCELLANEOUS   WRITINGS. 

additional  to  the  old.  Statute  law  and  the  natural 
growth  of  the  common  law  go  hand  in  hand  to  meet 
the  new  exigencies  of  life ,  and  business  that  are  con- 
stantly manifesting  themselves. 


THE  GROWTH  OF  LAW  NOT  TO  BE  SUPPRESSED  BY  CODES  : 
—USE  OF  CODES. 

This  law  of  development  is  universal.  No  matter 
what  codes  may  be  devised  for  the  purpose  of  fixing 
the  law,  and  making  it  unalterable,  in  the  nature  of 
things  it  cannot  stay  fixed.  Frederick  the  Great,  of 
Prussia,  was  the  originator  of  codes  in  modern 
Europe.  He  supposed  that  he  could  settle  the  law  as 
easily  as  he  could  control  his  legions.  He  had  a  con- 
temptuous regard  for  lawyers  and  civilians ;  and  he 
directed  his  Chancellor  to  draw  up  a  code,  in  which 
the  whole  law  should  be  expressed  in  plain  and  terse 
propositions,  which  might  be  understood  by  all,  and 
which  would  need  no  lawyer  to  explain  them.  Such 
a  code  he  intended  to  establish  as  the  perpetual  and 
unchangeable  law  of  Prussia.  Accordingly,  a  code 
was  prepared ;  but  its  imperfections  prevented  its 
adoption  in  Frederick's  day.  It  was  only  adopted  in 
the  reign  of  his  successor,  after  providing  for  the  appli- 
cation of  the  principles  of  justice  to  new  cases  that 
might  arise.  This  is  the  famous  Landrecht  of  Prussia, 
which  has  produced  innumerable  commentaries  for  its 
explanation  and  application,  and  which,  with  all  its 
pretensions,  could  not  stop  the  progress  of  law,  an\- 
more  than  it  could  stop  the  progress  of  human  affairs. 

The  Civil  Code  of  France  was  adopted  in  1804, 


LECTURE    ON    LAW.  251 

and  at  this  day  there  are  probably  a  thousand  vol- 
umes of  adjudged  cases  and  commentaries  on  the  code, 
which  have  all  to  be  consulted  in  order  to  know  what 
the  law  really  is. 

Codes  are  undoubtedly  useful  for  the  purpose  of 
settling  disputed  and  doubtful  points,  and  giving  to 
the  citizens  the  ordinary  rules  of  law  in  a  compact 
and  intelligible  form ;  but  they  should  not  be  allowed 
to  usurp  the  prerogatives  of  justice  itself,  seated  in 
man's  bosom,  by  giving  to  the  letter  of  the  code  the 
inexorable  fixity  of  a  statute,  and  thus  reducing  the 
exposition  of  the  law  to  a  question  of  philology  and 
verbal  criticism,  instead  of  a  question  of  reason  and 
justice.  Used  as  a  statement  of  principles  and  rules 
applicable  to  cases  clearly  within  their  scope,  and  not 
as  restraints  upon  the  judge  in  reference  to  other  cases 
which  are  not  provided  for,  and  which  require  a  new 
application  of  principles,  •/.  e.,  the  principles  of  right 
and  justice  governing  analogous  cases,  codes  may  not 
only  be  admissible,  but  may  be  of  great  service  in 
systematizing  and  perfecting  the  law.  They  should 
never  be  employed  for  the  purpose  of  giving  to  the  law 
a  cast-iron  fixity  of  form,  and  thereby  repressing  all 
progress  and  imposing  a  deleterious  and  smothering 
restraint  upon  society  itself. 

THE  ROMAN  LAW  NOT  A  CODE,  AS  OFTEN  SUPPOSED. 

It  has  been  supposed  by  some  that  the  Roman  law, 
as  it  has  been  transmitted  to  us,  being  in  writing,  is 
in  the  form  of  a  code ;  but  this  is  a  mistake.  The 
Roman,  like  the  English  and  our  own  law,  consisted 
of  comom  aud  statute  law.  The  former  was  a 
growth  of  time,  exactly  like  that  of  England,  with 


252  MISCELLANEOUS   WRITINGS. 

small  beginnings,  and  gradually  expanding  to  meet  the 
wants  of  civilization.  It  was  founded  on  old  consti- 
tutions, on  the  Twelve  Tables,  on  Plebiscita,  Senatus 
Consulta,  edicts  of  the  Praetors,  responses  of  the 
juris-consults,  Imperial  rescripts,  and  long  usage  and 
custom.  The  only  codes  ever  adopted  in  Rome  were 
the  Twelve  Tables,  adopted  about  450  years  before 
Christ,  and  the  Perpetual  Edict  of  Hadrian,  adopted 
131  years  after  Christ,  400  years  before  the  time  of 
Justinian.  The  Edict,  like  the  French  Code,  was  the 
occasion  of  innumerable  books  of  commentaries ; 
and  it  was  in  these  commentaries,  and  other  treat- 
ises on  the  law  composed  by  the  great  juris- 
consults of  Rome,  that  the  common  law  of  Rome  was 
to  be  found.  A  great  body  of  statute  law  grew  up 
at  the  same  time,  consisting  mostly  of  Imperial  Con- 
stitutions. The  two  made  up  the  whole  law  of  Rome. 
Justinian  appointed  a  commission  of  able  lawyers, 
with  Tribonian,  his  Minister  of  Justice,  at  its  head,  to 
make,  not  a  code,  but  a  digest  of  the  writings  of  the 
juris-consults,  which  had  much  the  same  authority  as 
our  volumes  of  adjudged  cases.  This  was  done  by 
making  extracts  from  the  best  writers,  and  arranging 
them  into  a  system,  under  different  heads  or  titles,  and 
dividing  the  whole  into  fifty  books.  This  is  the  Digest, 
or  Pandect,  equal  in  bulk,  if  translated,  to  about  three 
volumes  of  Bacon's  Abridgment,  which  it  resembles 
more  in  character  than  any  other  book  of  our  law. 
It  contains  the  common  law  of  Rome  in  the  very 
words  of  her  great  jurists,  with  all  their  reasonings 
and  illustrations ;  and  if  we  except  the  Holy  Scrip- 
tures, it  is  the  greatest  monument  of  wisdom  which 
antiquity  has  bequeathed  to  us. 


LECTURE   ON   LAW.  253 

The  next  work  of  Justinian's  Commissioners  was 
what  is  called  the  Code  (Codex) ;  but  it  is  not  a  code 
in  our  sense  of  the  word  ;  it  is  a  mere  compilation  of 
the  existing  statutes  of  the  empire  arranged  in  sys- 
tematic order,  according  to  the  plan  of  the  Digest,  and 
divided  into  twelve  books. 

The  Institutes  is  a  small  book  altered  from  the 
Institutes  of  Gaius  (which  had  been  in  use  for  four 
hundred  years)  and  prepared  for  the  use  of  students. 
It  is  divided  into  four  books,  and  contains  a  summary 
of  the  law  exhibited  in  the  Digest  and  Code. 

The  Novels,  or  novellae  constitutiones,  are  later 
statutes,  mostly  adopted  during  the  reign  of  Justinian, 
for  supplying  deficiencies  found  to  exist  in  the  Digest 
and  Code,  or  making  amendments  in  the  law.  One  of 
these  novels,  the  118th,  is  celebrated  as  being  the  law 
from  which  our  statute  of  distribution  of  the  personal 
estates  of  deceased  persons  was  taken. 

These  four  works,  the  Digest,  Code,  Institutes  and 
Novels  constitute  the  Corpus  Juris  Civilis  of  Rome. 
They  exhibit  precisely  the  same  characteristics  pre- 
sented by  our  own  laws  as  regards  the  gradual 
growth  and  progress  of  the  law,  and  its  adaptation 
to  the  changing  circumstances  and  conditions  of 
society. 

It  is  to  be  hoped  that  you  will  some  day  make  the 
acquaintance  of  this  splendid  system  of  law,  not 
merely  as  a  matter  of  curiosity,  but  as  the  source  and 
fountain  from  which  much  of  the  common  law  has 
been  drawn,  as  well  as  an  inexhaustible  storehouse  of 
principles,  rules  and  distinctions,  which  are  succeptible 
of  constant  application  to  the  circumstances  of  modern 
society,  and  the  knowledge  of  which  will  be  of  signal 


254  MISCELLANEOUS    WRITINGS. 

advantage  in  the  pursuit  of  your  profession.  Hitherto 
these  magnificent  monuments,  except  the  Institutes, 
have  remained  untranslated  into  English,  although 
the  civilians  of  Oxford  and  Cambridge  are  now  begin- 
ning the  herculean  task.  But  to  read  them  in  their 
original  terse  and  forcible  Latin  will,  of  itself,  be 
accompanied  with  the  great  advantage  of  perfecting 
your  familiarity  with  that  tongue,  which  an  accom- 
plished lawyer  cannot  well  be  without. 

But  my  object  in  referring  to  the  Roman  law  is  to 
show  that  it  is  not,  as  some  have  supposed,  an  excep- 
tion to  the  general  rule,  that  law  is  an  outgrowth  of 
human  nature,  and  is  subject  to  immutable  laws  of 
development  according  to  the  progress  and  necessities 
of  civil  society.  From  this  general  character  of  law, 
as  before  stated,  I  deduce  an  additional  argument  to 
those  already  advanced,  that  the  knowledge  of  law, 
or  jurisprudence,  may  justly  be  called  a  science. 

AS  A  SCIENCE  THE  LAW  CAN  ONLY  BE  ACQUIRED  BY  LONG 
AND  PATIENT  STUDY. 

But  it  is  necessary  to  warn  you  that  as  a  science 
it  is  not  to  be  acquired  in  a  day,  nor  in  a  year,  but 
only  by  the  "  lucubrationes  viginti  annorum."  As  in 
the  creation,  we  may  suppose  that  the  light  of  the 
stars  did  not  all  burst  upon  man  at  a  single  moment, 
but  came  upon  him  from  their  distant  chambers  in 
successive  beams  one  after  another,  according  to  their 
recondite  stations  in  space  ;  so  in  the  study  of  law, 
one  great  principle  after  another  comes  to  the  yearn- 
ing mind,  and  overspreads  it  with  light  and  gladness  ; 
and  many  long  years  may  elapse  before  one  can  feel 
that  he  has  really  mastered  the  law,  and  fully  obtained 


LECTURE    ON    LAW.  255 

that  "gladsome  light  of  jurisprudence,"  spoken  of  by 
Lord  Coke.  There  may  be  one  or  two  men  in  a  gen- 
eration, of  startling  genius,  who  by  some  natural 
inspiration  or  instinct,  become  great  lawyers  at  a 
bound  and  achieve  a  glorious  career  without  any  great 
study  or  seeming  effort.  But  they  appear  like  the  sum- 
mer tornado,  without  observation  or  premonition. 
They  are  a  law  unto  themselves  alone,  and  furnish  no 
guide  or  example  for  others.  Ordinary  men  are  not 
thus  inspired ;  it  will  not  be  safe  for  you  to  hope  for 
any  such  inspiration.  You  must  calculate  on  travel- 
ling the  old  dusty  road  which  we  have  all  travelled 
before  you.  You  must  look  forward  to  hard  toil  and 
slow  and  steady  acquirement.  Unless  you  can  make 
up  your  mind  to  this,  you  had  better  undertake  some 
other  pursuit.  I  do  not  wish  to  discourage  you,  but 
to  set  before  you  the  truth.  The  reward  of  persever- 
ance is  sufficiently  splendid  to  give  you  courage  and 
hope ;  but  you  cannot  expect  to  realize  it  for  many 
years  to  come  ;  and  those  must  be  years  of  labor  and 
study  and  patient  expectation. 

SOME  SUGGESTIONS  ON  THE  MODE  OF  STUDYING  LAW. 

It  would  be  out  of  place  for  me  to  attempt  to 
prescribe  for  you  a  routine  of  studies ;  your  learned 
and  able  professors  are  much  more  competent  to  do 
this  than  I  am.  But  I  may,  without  impropriety, 
make  a  suggestion  or  two  as  to  the  mode  and  manner 
of  study  which  seem  to  me  to  be  entitled  to  your 
consideration. 

Of  course  the  matter  and  substance  of  your  text 
books  are  to  be  fully  mastered  and  impressed  upon  the 
memory.  This  is  taken  for  granted.  The  best  mode 


256  MISCELLANEOUS    WRITINGS. 

of  doing  this  undoubtedly  is  the  constant  use  of  the 
pen  in  making  full  abstracts,  and  often  reviewing 
what  is  thus  written,  as  well  for  the  purpose  of  aid- 
ing the  memory  as  for  that  of  getting  a  clear  view 
of  the  subject  in  all  its  relations.  But  what  I  would 
particularly  impress  upon  you  is  the  habit  of  master- 
ing the  language  and  forms  of  expression  of  your 
author.  In  mathematics  a  mental  conception  of  signs 
and  diagrams  is  chiefly  important  in  the  acquisition 
of  geometrical  truth  ;  the  exact  language  of  the  propo- 
sitions and  demonstrations  is  not  of  vital  import- 
ance. A  mathematical  professor  will  be  satisfied  with 
his  student  if  he  finds  that  he  comprehends  the  math- 
ematical ideas,  without  scrutinizing  his  style  of  expres- 
sion. But  it  is  not  so  in  the  law.  Here  it  is  not  only 
necessary  to  know  the  rule,  but  to  know  how  to  express 
it  in  appropriate  language.  There  is  no  science  in  which 
the  words  and  forms  of  expression  are  more  important 
than  the  law.  Precision  of  definition  and  statement 
is  a  sine  qua  non.  Possessing  it,  you  possess  the  law  ; 
not  possessing  it,  you  do  not  possess  the  law,  but 
only  the  power  of  vainly  beating  the  air  with  uncer- 
tain words  which  impress  nobody,  instruct  nobody, 
convince  nobody.  In  the  law  all  the  knowledge  in  the 
world  without  the  power  of  expressing  it  in  apt 
formulas  and  correct  diction,  is  useless  to  the  possessor. 
This  language  may  seem  hyperbolical,  but  it  is  true. 
A  lawyer  without  the  power  of  clear  and  accurate 
expression  is  like  a  seventy -four  gun  ship  grounded  on 
a  sand-bar,  unwieldy,  unmanageable,  and  the  easy 
victim  of  any  small  craft  of  the  enemy  that  happens 
to  be  abroad.  I  wish  this  sentence  could  be  deeply 
lodged  in  your  minds,  to  wit :  It  is  of  the  utmost 


LECTURE   ON   LAW.  257 

importance  to  a  student  of  the  laws  to  acquire 
besides  a  knowledge  of  the  law  itself,  the  power  of 
expressing  it  in  correct  and  appropriate  language, 
such  as  is  found  in  books  of  authority.  For  correct 
and  appropriate  diction  is  as  necessary  to  the  lawyer 
as  a  knowledge  of  the  law. 

Some  men  have  a  natural  gift  of  recalling  the  exact 
language  of  the  books  they  read  and  master.  Their 
word  memory  is  exceptional,  sometimes  almost  mirac- 
ulous. But  there  are  few  who  are  thus  gifted,  and  to 
most  persons  it  is  a  laborious  task  to  store  up  in  their 
minds  the  accurate  terms,  phrases  and  definitions  of 
the  law.  The  treasure  to  be  secured,  however,  is 
worthy  of  the  greatest  pains. 

Perhaps  one  of  the  best  aids  to  the  accomplishment 
of  which  I  speak  is  to  choose  some  author  of  pure 
and  accurate  diction,  and  make  his  works  a  vade 
mecum,  until  you  have  become  so  familiar  with  its 
contents  that,  although  not  absolutely  committed  to 
memory,  the  words  and  forms  of  expression  will 
spontaneously  suggest  themselves  whenever  you  begin 
to  speak  or  write  on  the  subject.  Of  course,  there 
can  be  no  doubt  what  book  should  be  chosen  for 
this  purpose.  There  is  nothing  to  compare  with  the 
Commentaries  of  Sir  William  Blackstone  in  complete- 
ness of  scope,  purity  and  elegance  of  diction,  and 
appositeness,  if  not  always  absolute  accuracy,  of 
definition  and  statement.  One  of  the  greatest,  if  not 
the  greatest  of  forensic  speakers,  as  well  as  lawyers, 
that  I  ever  knew,  was  the  late  Mr.  George  Wood,  of 
New  York— in  his  early  days  a  leader  of  the  Bar  of 
New  Jersey.  His  discourse  to  the  Court  was  always 
grave,  dignified  and  commanding ;  his  diction  was 


258  MISCELLANEOUS   WRITINGS. 

chaste  and  pure,  and  his  style  was  rich  in  correct 
legal  phraseology  ;  so  that  he  seemed,  when  speaking, 
to  be  the  personification  o£  the  law  itself.  He  made 
no  gestures,  and  but  few  references  to  authorities ;  he 
did  not  need  authorities ;  you  knew,  as  he  spoke,  that 
what  he  spoke  was  the  law.  All  was  reduced  to  such 
plain  and  simple  principles,  and  enforced  with  such 
logical  clearness  of  argument,  in  the  chastest  as  well 
as  the  richest  and  most  appropriate  legal  diction, 
that  he  compelled  the  closest  attention  and  carried 
conviction  along  with  him  to  the  end.  I  have  often 
hung  upon  his  lips  with  chained  attention,  even 
when  opposed  to  him  in  the  case,  and  can  truly 
say  that  I  never  enjoyed  a  greater  intellectual  treat 
than  in  listening  to  his  arguments.  Now,  I  happen 
to  have  heard  from  one  of  Mr.  Wood's  contemporaries 
an  account  of  the  method  which  he  pursued  for 
acquiring  his  wonderful  command  of  choice  juridical 
diction. 

It  was  his  custom  for  many  years,  in  the  earlier  part 
of  his  professional  life,  when  not  overburthened  with 
business,  to  read  a  chapter  of  Blackstone  of  a  morn- 
ing and  then  to  take  a  long  walk,  and  repeat  to  him- 
self all  that  he  could  remember  of  what  he  had  read, 
even  to  the  very  words  and  phrases  in  those  parts 
that  were  important,  such  as  definitions  and  the  like. 
If  not  satisfied  with  the  first  trial,  he  would  repeat 
the  process  on  the  succeeding  day,  and  in  this  manner, 
chapter  after  chapter,  he  went  through  the  commen- 
taries, until  they  were  so  perfectly  mastered,  both  in 
matter  and  form,  that  he  became  almost  a  walking 
commentary  himself. 

His  case  illustrates  the  oft  repeated  injunction,  to 


LECTURE   ON    LAW.  259 

"  Beware  of  the  man  of  one  book."  This  injunction 
is  based  on  a  truth  of  much  importance  to  the  profes- 
sional student.  Perfect  familiarity,  perfect  mastery  of 
any  one  good  book  is  a  mine  of  intellectual  wealth 
not  merely,  not  so  much,  for  the  matter  which  is  thus 
made  one's  own,  as  for  the  vocabulary,  the  diction, 
the  style  and  manner  of  expression  which  is  mastered 
and  indelibly  fixed  in  the  mind.  How  many  pulpit 
orators,  and  even  secular  speakers,  have  become  noted 
for  their  eloquence  by  their  familiarity  with,  and 
ready  use  of,  the  language  of  sacred  scripture  !  And 
when  the  one  book  mastered  in  this  way  is  such  a 
book  as  Blackstone's  Commentaries,  it  is  easy  to  com- 
prehend what  power  and  beauty  may  be  acquired  and 
laid  by  for  future  use  in  the  display  of  forensic  elo- 
quence. 

This  method  of  constant  and  repeated  study  of 
a  few  good  books,  gives  one  also  a  firm  grasp  of  the 
principles  of  the  law,  as  well  as  of  the  forms  of 
expression.  The  particular  books  are  not  essential,  if 
they  are  good  books,  and  by  authors  of  original 
authority.  When  a  student  at  law  I  took  up,  out  of 
the  regular  course,  Gilbert  on  Evidence,  the  original 
edition,  a  small  book,  but  full  of  principles  and  grounds 
of  the  law,  after  the  manner  of  the  great  Chief  Baron. 
I  studied  it  carefully  over  and  again,  and  I  believe 
that  I  derived  as  much  benefit  from  that  little  old  book 
as  from  any  I  ever  read,  except,  perhaps,  Stephens  on 
Pleading,  which  I  studied  in  much  the  same  manner. 
I  conclude  that  it  was  not  so  much  the  particular 
books,  as  the  manner  of  study,  which  produced  a 
beneficial  result. 

Another  branch  of  reading,  not  comprised  in  the 


260  MISCELLANEOUS   WRITINGS. 

regular  course,  and  which  is  productive  of  the  greatest 
benefit,  is  that  of  great  leading  cases  in  the  reports— 
here  and  there  one — like  that  of  Twyne's  Case  and 
Shelley's  Case,  in  Coke,  Coggs  v.  Bernard,  in  Lord 
Raymond,  Miller  v.  Race,  in  Burrow,  etc.,  not  forget- 
ting the  great  Constitutional  cases  decided  in  this 
country,  in  which  Chief  Justice  Marshall  delivered 
those  profound  opinions  which  have  immortalized  his 
name.  The  careful  reading  of  a  case— the  whole  of  it— 
including  the  arguments  of  counsel,  will  enlarge  one's 
knowledge  of  the  law,  strengthen  the  understanding 
and  furnish  a  key  to  the  methods  of  juridical  discussion 
in  the  courts. 


THE  STUDENT  OF  LAW  MUST  BECOME  ACQUAINTED  WITH 
THE  STRUCTURE  OF  CIVIL  SOCIETY,  AND  WITH  HUMAN 
AFFAIRS  AND  BUSINESS. 

But  if  I  have  succeeded  in  my  object,  I  have  im- 
pressed upon  you  the  conviction  that  the  law  is  not 
to  be  studied  and  learned  like  a  dead  language,  in 
books  only  ;  but  that  it  is  a  living  subject,  embodied  in 
and  sustaining  that  civil  society  of  which  you  are 
members,  and  manifested  in  its  organic  form,  and  in 
the  rules  and  regulations  by  which  it  is  ordered  and 
made  harmonious  and  conducive  to  the  greatest 
human  happiness. 

All  this  may  seem  to  be  very  common  knowledge — 
almost  home-spun  truth.  But  home-spun  truths  often 
need  to  be  impressed  upon  the  attention.  Their 
importance  is  frequently  overlooked.  One  deduction 
to  be  drawn  from  the  truth  which  I  have  endeavored 
to  present  is,  the  importance,  to  a  student  of  law,  of 


LECTURE   ON   LAW.  261 

having  a  knowledge  of  affairs,  a  knowledge  of  civil 
society,  its  constitution  and  doings  ;  a  knowledge  of 
what  is  taking  place  around  him.  He  should  know, 
as  far  as  possible,  the  reason  of  everything.  In  other 
words,  he  should  be  wide  awake,  and,  with  open  eyes, 
should  watch  this  great  drama  of  human  life  which 
is  being  acted  in  his  presence ;  and  not  go  dreaming 
around,  with  his  head  down,  dwelling  only  and  always 
upon  the  metaphysical  quiddities  of  the  law.  These 
quiddities  may  be  very  good  in  their  place  ;  but  they 
should  not  be  allowed  to  absorb  the  whole  attention 
of  the  student,  and  entirely  divert  it  from  the  fresh, 
green  views  presented  by  that  living  law  which  he  is 
to  apply  to  actual  life  around  him,  and  which  he  can 
only  understand  in  its  true  spirit  by  a  wide  and  varied 
knowledge  of  that  life  as  the  material  and  ground 
work  of  civil  society.  Of  what  use  will  it  be  to  him 
to  know  all  about  the  British  Constitution,  for  exam- 
ple, if  he  does  not  understand  our  own  Constitution, 
Federal  and  State  ?  Of  what  use  to  know  the  organi- 
zation of  the  government  and  the  courts  of  England, 
if  he  does  not  know  that  of  our  own  government  and 
courts  ?  Probably  you  all  know  the  number,  the 
names  and  boundaries  of  the  counties  in  your  own 
State  ;  but  do  you  know  what  are  the  officers  of  each 
county,  and  what  are  their  powers  ?  Can  you  tell  by 
what  authority  roads  are  laid  out  and  bridges  are  built  ? 
Can  you  tell  by  what  authority  a  telegraph  pole  is 
erected  in  front  of  your  door  ?  Are  you  acquainted 
with  the  powers  of  the  Common  Council  of  the  city  in 
which  you  live  ?  A  man  of  ordinary  good  intelligence 
finds  out  many  of  these  things  without  suspecting 
that  he  is  learning  something  of  the  law.  He  picks 


262  MISCELLANEOUS   WRITINGS. 

them  up  from  the  newspapers,  from  conversation,  from 
everything  that  affords  him  information.  He  is  wide 
awake  to  what  is  going  on  around  him.  His  eyes  are 
open.  He  takes  in  knowledge  at  every  pore.  So  the 
law  student  should  be.  To  put  it  in  a  homely  manner, 
he  should  have  "  an  inquiring  mind."  Ulpian,  as  before 
stated,  says  that  jurisprudence  is  the  knowledge  of 
things  human  and  divine,  as  well  as  the  science  of 
what  is  just  and  what  is  unjust.  This  is  a  broad 
definition,  but  it  is  suggestive.  The  lawyer  ought, 
indeed,  to  know  almost  everything,  for  there  is  noth- 
ing in  human  affairs  that  he  may  not,  some  time  or 
other,  have  to  do  with.  At  least,  he  ought  to  be 
acquainted  with  all  those  things  which  go  to  make  up 
the  form  and  body,  the  life  and  order  of  the  society  in 
which  he  lives.  He  ought  to  know  its  civil  institu- 
tions and  their  several  functions.  He  ought  to  know 
all  those  things  about  his  country  and  his  State  which 
would  enable  him  to  speak  intelligently  of  their  insti- 
tutions, their  policy,  and  their  public  proceedings.  He 
ought  to  know  how  ordinary  matters  of  business  are 
transacted  ;  the  forms  and  meaning  of  bonds,  promis- 
sory notes,  bills  of  exchange,  bank  checks,  drafts, 
leases,  releases,  ordinary  deeds,  policies  of  insurance, 
agreements.  He  ought  to  interest  himself  to  learn  the 
actual  methods  of  doing  business,  not  only  in  private 
counting  houses,  in  the  market  and  in  the  exchange,  but 
also  in  the  halls  of  city,  State  and  Federal  legislation.  A 
great  mass  of  this  sort  of  general  knowledge  and  infor- 
mation can  be  acquired  by  one  anxious  to  learn,  without 
interfering  with  the  general  course  of  his  studies ;  and 
it  will  throw  great  light  on  his  studies.  It  will  often 
enable  him  to  understand  and  apply  them  when  other- 


LECTURE   ON    LAW.  263 

wise  their  use  and  application  would  not  be  recognized. 
The  sort  of  knowledge  to  which  I  refer  is  largely 
to  be  found  in  the  statute-book,  and  that,  however 
much  despised,  is  a  book  which  ought  always  to  be 
within  the  student's  reach.  It  should  be  his  vade 
mecum,  not  to  the  exclusion  of  scientific  text  books, 
but  as  an  adjunct  and  interpreter  of  them.  The 
statute-book  exhibits  the  actual  institutions  and  regu- 
lations prevailing  in  the  State  at  the  present  time. 

One  of  the  advantages  of  studying  law  in  the 
office  of  a  practitioner  is  the  acquisition,  to  some 
extent,  of  the  kind  of  knowledge  to  which  I  have 
referred.  The  student  is  there  brought  in  contact  with 
the  business  world,  and  the  practical  application  of 
the  law  to  actual  cases.  He  copies  deeds,  agreements, 
documents  of  every  kind,  as  well  as  legal  papers,  and 
is  often  charged  with  business  transactions  that 
increase  his  general  knowledge. 

I  do  not  underrate  the  study  of  law  by  scientific 
methods,  as  it  is  pursued  in  this  and  other  schools. 
This  method  of  study  is  of  the  greatest  value.  It 
makes  scientific  lawyers.  It  gives  general  and  har- 
monious views  of  the  law.  It  awakens  an  interest 
for  its  profound  depths.  But  whilst  the  science  is 
studied  here,  its  application  to  the  status,  the  exigen- 
cies and  the  wants  of  society  may  be  learned,  and 
best  learned,  by  a  study  of  the  living  subject  itself— 
civil  society — and  the  transactions  that  prevail  in  it ; 
everything  that  exists  and  every  thing  that  passes 
about  one  in  the  social  state. 

I  have  urged  this  view  upon  your  attention  because 
I  have  often  seen  young  men  settle  down  into  mere 
book  worms  of  the  law,  losing  their  interest  in  passing 


264  MISCELLANEOUS   WRITINGS. 

events  and  what  is  going  on  around  them,  and  thereby 
becoming  unadapted  to  the  active  professional  duties 
of  the  lawyer,  which  exhibit  him  in  his  most  useful 
character,  and  bring  him  the  richest  rewards. 

THE  LAWYER'S  STUDIES  FIT  HIM  TO  TAKE  A  LEADING 
PART  IN  THE  STATE. 

These  considerations  lead  us  to  another  interesting 
view  of  our  profession.  The  subject  of  the  lawyer's 
studies  necessarily  makes  him  intimately  acquainted 
with  all  the  duties  of  the  magistrate,  as  well  as  all 
the  duties  of  the  citizen  ;  with  the  rules  of  conduct  that 
actually  prevail,  and  with  the  wants  and  necessities 
of  the  body  politic  requiring  any  change  or  modifica- 
tion of  these  rules.  Of  course  with  this  species  of 
study  and  training,  no  class  of  the  community  is  so 
well  qualified  as  the  lawyer  to  take  a  leading  part  in 
the  affairs  of  the  community^  in  the  making  and  in  the 
administration  of  its  laws,  and  in  the  execution  of  the 
powers  of  government.  It  is  the  legitimate  and 
proper  result  of  his  studies  and  training.  This  is  only 
true,  however,  when  the  lawyer  takes  a  broad  and 
liberal  view  of  his  profession,  and  regards  it,  as  it 
should  be  regarded,  as  ancillary  to  the  promotion  of 
justice  and  right  amongst  men,  and  the  general  good 
of  the  State.  The  merely  technical  pettifogger,  the 
leguleius  cautus,  is  more  unfitted  than  other  men  to 
counsel  and  govern  the  State,  because  the  narrow 
and  incorrect  views  which  he  takes  of  his  profession 
rather  lead  him  astray,  to  the  promotion  of  mischiev- 
ous devices  and  expedients,  than  to  wise  and  prudent 
measures.  He  knows  both  too  much  and  too  little ; 


LECTURE   ON    LAW.  265 

too  much  to  be  modest,  prudent  and  conservative,  too 
little  to  take  wise  and  enlightened  views.  Hence  it 
often  happens,  as  the  result  of  such  unfortunate 
examples,  that  a  popular  jealousy  and  distrust  of 
lawyers  prevails  in  keeping  them  out  of  places  of 
public  trust. 

How  important,  therefore,  it  is  to  themselves  as  a 
class,  as  well  as  to  society  at  large,  that  the  students 
of  justice  and  right,  should  be  imbued  with  the  prin- 
ciples of  justice  and  right,  so  that  the  profession  may 
take  that  high  and  noble  position  in  the  community 
which,  when  it  is  faithful  to  itself,  is  its  just  preroga- 
tive. 

CONCLUSION. 

The  few  suggestions  that  I  have  made  with  regard 
to  the  range  of  inquiry  desirable  in  the  study  of  law 
must  not  be  taken  as  complete.  In  a  single  lecture 
I  can  only  set  forth  a  few  things  to  be  acquired  or 
done  that  strike  me  as  important,  and  that  may  not 
be  obvious  to  the  student.  There  are,  of  course, 
many  others  which  I  cannot  dwell  upon,  such  as 
general  history,  the  history  of  the  law,  legal  biogra- 
phy, political  philosophy,  political  economy,  and  many 
more,  which  the  student  must  in  time  acquire,  in  order 
to  become  an  accomplished  lawyer.  To  sum  up  all  in 
one  word,  in  order  to  be  an  accomplished  lawyer,  it 
is  necessary,  besides  having  a  knowledge  of  the  law, 
to  be  an  accomplished  man,  graced  with  at  least  a 
general  knowledge  of  history,  of  science,  of  philos- 
ophy, of  the  useful  arts,  of  the  modes  of  business, 
and  of  everything  that  concerns  the  well-being  and 
intercourse  of  men  in  society.  He  ought  to  be  a  man 


266  MISCELLANEOUS   WRITINGS. 

of  large  understanding  ;  he  must  be  a  man  of  large 
acquirements  and  rich  in  general  information ;  for,  he 
is  a  priest  of  the  law,  which  is  the  bond  and  support 
of  civil  society,  and  which  extends  to  and  regulates 
every  relation  of  one  man  to  another  in  that  society, 
and  every  transaction  that  takes  place  in  it. 

Trained  in  such  a  profession,  and  having  these 
acquirements,  and  two  things  more  (which  can  never 
be  omitted  from  the  category  of  qualifications),  incor- 
ruptible integrity  and  a  high  sense  of  honor,  the  true 
lawyer  cannot  but  be  the  highest  style  of  a  man,  fit 
for  any  position  of  trust,  public  or  private ;  one  to 
whom  the  community  can  look  up  as  to  a  leader  and 
guide ;  fit  to  judge  and  to  rule  in  the  highest  places  of 
magistracy  and  government ;  an  honor  to  himself,  an 
honor  to  his  kind. 


PROCEEDINGS  AT  THE  ORGANIZATION 

OP  THB 

UNITED     STATES 

CIRCUIT   COURT    OF  APPEALS 

FOR  THB 

THIRD     CIRCUIT, 

AT    PHILADELPHIA, 

ON  TUESDAY,  JUNE  16,  1891, 
AT   12  O'CLOCK,  NOON. 


The  following  Judges  were  on  the  bench  : 

MR.  JUSTICE  BRADLEY,  of  the  Supreme  Court  of  the  United  States. 

HON.  MARCUS  W.  ACHBSOX,  Judge  of  the  United  States  Circuit  Court 
for  the  Third  Circuit. 

HON.  WILLIAM  BUTLER,  Judge  of  the  United  States  District  Court  for 
the  Eastern  District  of  Pennsylvania. 

HON.  LEONARD  E.  WALES,  Judge  of  the  United  States  District  Court 
for  Delaware. 

HON.  EDWARD  T.  GREEN,  Judge  of  the  United  States  District  Court  for 
New  Jersey. 

HON.  JAMES  H.  REED,  Judge  of  the  United  States  District  Court  for  the 
Western  District  of  Pennsylvania. 

A  large  number  of  the  members  of  the  Bar  of  the  Circuit  were  present. 


MR.  JUSTICE  BRADLEY  SPOKE  AS  FOLLOWS  : 

This  being  the  day  appointed  for  the  first  meeting 
of  the  Circuit  Court  of  Appeals,  we  have  met  for  the 
purpose  of  organizing  the  Court.  According  to  the 
Act  of  Congress,  the  Court  is  to  consist  of  three 
Judges— the  Associate  Justice  of  the  Supreme  Court, 
together  with  a  Circuit  Court  Judge  and  such  District 
Judge  as  may  be  assigned  for  the  purpose. 

We  have  agreed  upon  a  general  order,  which  I  will 
read  and  which  will  be  adopted  by  the  Court. 


268  MISCELLANEOUS   WRITINGS. 

"  United  States  Circuit  Court  of  Appeals  for  the 
Third  Circuit,  at  the  City^of  Philadelphia,  this  third 
Tuesday  of  June,  1891. 

"!T  is  ORDERED  that,  when  it  shall  be  necessary  in 
order  to  make  a  full  court  that  a  District  Judge  should 
be  assigned  for  that  purpose,  the  District  Judges  of  the 
Circuit  shall  be  assigned  in  rotation  according  to  the 
date  of  their  commissions  respectively,  beginning  at 
this  present  term  with  Hon.  William  Butler,  the  Judge 
oldest  in  commission  ;  and  each  Judge  shall  be  assigned 
for  an  entire  term;  and  if  at  any  time  during  the 
term,  two  District  Judges  shall  be  required,  then  the 
Judge  next  in  order  to  the  one  already  assigned  shall 
be  assigned  for  the  purpose ;  and  so  in  like  manner  if 
three  of  such  Judges  shall  be  required  ;  and  if  any  Judge 
assigned  to  sit  in  the  Court  shall  be  incompetent  to 
sit  in  a  particular  case,  the  Court  may  assign  any 
other  District  Judge  to  take  his  place  for  the  hearing 
of  such  case,  and  the  cases  on  the  docket  in  which  any 
Justice  or  Judge  of  the  Court  is  incompetent  to 
sit  may  be  arranged  in  a  separate  docket,  to  be  heard 
when  the  Court  is  properly  constituted  for  the  purpose. 
And  if  at  any  time,  in  consequence  of  the  absence  of 
any  member  of  the  Court,  an  additional  Judge  is 
required  to  make  a  full  Court,  the  Court  may  assign 
and  call  in  any  District  Judge  to  sit  for  the  time  being 
in  place  of  the  member  so  absent. 

"  IT  is  FURTHER  ORDERED,  that  there  shall  be  two 
stated  terms  of  this  Court  in  each  year,  to  commence 
and  be  held  respectively  on  the  third  Tuesday  of 
March  and  the  third  Tuesday  of  September,  at  the 
City  of  Philadelphia. 

"  IT  is  FURTHER  ORDERED  that  William  V.  William- 


U.  8.  CIRCUIT  COURT  OF  APPEALS.  269 

son  be,  and  he  is  hereby  appointed  the  Clerk  of  this 
Court,  and  that  Abram  D.  Harlan  be,  and  he  is  hereby 
appointed  the  Marshal  of  this  Court. 

"!T  is  FURTHER  ORDERED  that  the  rules  hereto 
annexed  shall  be  the  general  rules  of  the  Court." 

This  order  is  agreed  to  by  the  other  members  of 
the  Court,  and  will  be  recorded  by  the  Clerk  in  the 
minutes. 

It  is  unnecessary  for  me  to  read  the  general  rules 
adopted  by  the  Court.  They  are  modelled  upon  the 
rules  of  the  Supreme  Court  of  the  United  States,  and 
will  be  changed  should  circumstances  require.  The  name 
adopted  for  the  Court  is  "  The  United  States  Circuit 
Court  of  Appeals  for  the  Third  Circuit."  The  terms 
have  already  been  referred  to,  two  terms  a  year  to  be 
held  at  this  city.  I  may  add  that  the  law  constitut- 
ing the  Court  authorizes  it  to  be  held  at  other  places 
than  Philadelphia,  but  this  being  a  very  compact  circuit, 
and  there  being  always  inconveniences  attending  the 
removal  of  the  minutes  of  the  Court  and  in  travelling 
about  with  the  records  to  other  places,  it  seemed  to  us 
best  for  the  public  interests,  and  quite  as  much  for  the 
public  convenience,  to  have  the  Court  always  held 
here. 

There  are  two  or  three  rules  to  which  I  will  call 
your  attention.  One  is  of  most  interest  to  members 
of  the  Bar,  and  is  as  follows :  "  All  attorneys  and 
counsellors  admitted  to  practice  in  the  Supreme  Court 
of  the  United  States,  or  in  any  Circuit  Court  of  the 
United  States,  shall  become  attorneys  and  counsellors 
of  this  Court  on  taking  an  oath  or  affirmation  in  the 
form  prescribed  by  rule  of  the  Supreme  Court  of  the 
United  States,  and  on  subscribing  to  the  rule,  but  no 


270  MISCELLANEOUS   WRITINGS. 

fee  shall  be  charged  therefor,  and  all  attorneys  and 
counsellors  of  the  Circuit  Court  of  the  United  States 
for  the  Third  Circuit  shall  be  attorneys  and  counsellors 
of  this  Court  without  taking  any  further  oath." 

Therefore  the  attorneys  and  counsellors  of  the 
Circuit  Court  may  consider  themselves  as  attorneys 
and  counsellors  of  this  Court.  It  would  be  a  useless 
ceremony  to  require  a  further  oath  or  affirmation 
from  them. 

There  are  rules  with  regard  to  bills  of  exception. 
Of  course,  these  will  be  in  the  hands  of  the  attor- 
neys and  will  be  carefully  examined  by  them. 

The  rules  which  are  here  appended  are  adopted  by 
the  Court,  and  they  will  be  recorded  in  the  minutes. 

Mr.  Justice  Bradley  then  administered  the  oath  to 
William  V.  Williamson,  Clerk,  and  to  Abram  D.  Har- 
lan,  Marshal. 

Mr.  Justice  Bradley  then  spoke  as  follows : 

It  must  he  conceded  that  the  organization  of  this 
Court  and  similar  Courts  in  the  other  circuits  is  a 
very  important  event  in  the  history  of  the  jurispru- 
dence of  the  United  States.  This  Court  is  clothed 
by  the  statute  creating  it  with  a  large  portion  of  the 
appellate  jurisdiction  heretofore  exercised  by  the 
Supreme  Court,  and,  in  some  cases,  in  fact,  in  the 
majority  of  cases,  the  decision  of  this  Court  is  to  be 
final,  with  the  exception  of  the  right  of  the  Court 
to  certify  any  questions  of  law  to  the  Supreme 
Court  for  its  instruction,  and  with  the  further  excep- 
tion that  if  this  Court  does  not  make  such  certificate 
when  it  is  applied  to  for  it,  the  Supreme  Court  may 
issue  a  certiorari  to  this  Conrt  requiring  causes  to 
be  certified  to  it  for  hearing  on  appeal.  This  last 


U.  S.  CIRCUIT  COURT  OF  APPEALS.  271 

power  given  to  the  Supreme  Court  will  probably  be 
a  cause  of  considerable  anxiety  to  that  Court,  for, 
in  most  of  the  cases  where  this  Court  shall  refuse  to 
grant  a  certificate,  application  will  probably  be  made 
to  the  Supreme  Court  for  a  certiorari,  unless  by  the 
consideration  and  fair  judgment  of  counsel  the  multipli- 
cation of  such  applications  is  avoided. 

The  cases  in  which  the  decision  of  this  Court  is 
to  be  final  are,  first,  all  the  cases  that  arise  under 
the  State  laws,  that  is  to  say,  all  the  cases  in  which 
the  jurisdiction  of  the  Federal  Court  depends  on  the 
citizenship  of  the  parties.  In  all  such  cases  it  is  the 
State  law  that  applies,  and  not  the  Federal  law. 
Heretofore  that  department  of  the  jurisdiction  of  the 
Supreme  Court  has  been  very  extensive,  and  com- 
plaints have  sometimes  been  made  that  the  Supreme 
Court  has  not  followed  the  line  of  decisions  of  the 
State  Courts,  which  are  generally  the  primary  expo- 
nents of  the  State  law.  I  think,  however,  that  the 
Supreme  Court  has  generally,  if  not  always,  mani- 
fested a  strong  desire  to  follow  the  lead  of  the  State 
Courts  with  regard  to  State  jurisprudence  where  it 
could  do  so  without  what  appeared  to  it  an  obvious 
departure  from  sound  law.  The  rule  by  which  the 
Federal  Courts  are  governed  in  this  respect  was 
attempted  to  be  laid  down  by  the  Supreme  Court 
in  the  case  of  Burgess  v.  Seligman,  in  which  it  was 
held  that  where  the  local  law  had  become  settled 
by  a  reasonably  uniform  line  of  decisions,  the  Federal 
Courts  would  not,  and  indeed  could  not,  depart  from 
them,  because  it  is  their  duty  to  administer  the  law 
as  it  is,  and  the  law,  when  it  has  become  settled  by  a 
course  of  decisions  in  the  State  Courts,  must  be 


272  MISCELLANEOUS   WRITINGS. 

accepted  according  to  those  decisions.  But  where  the 
State  Courts  have  not  come  to  any  definite  conclusion 
upon  a  particular  point  of  law,  or  where  there  have 
been  vacillating  decisions  on  the  subject,  the  Federal 
Courts  have  felt  it  to  be  their  duty  and  their  preroga- 
tive to  judge  for  themselves  what  the  State  law  is, 
because  the  clause  of  the  Constitution  which  extends 
the  judicial  power  of  the  Federal  Government  to  con- 
troversies between  citizens  of  different  States  was 
intended  to  give  them  an  impartial  tribunal  for  the 
decision  not  only  of  the  facts,  but  of  the  law ;  and, 
therefore,  it  is  the  duty  of  the  Federal  Courts  to 
judge  for  themselves  what  the  law  is  in  all  cases 
where  they  have  jurisdiction  by  virtue  of  the  divers 
citizenship  of  the  parties,  as  well  as  in  other  cases. 

Now,  this  Court  will  be  the  tribunal  for  the  final 
determination  of  all  such  cases,  unless  questions  arise 
which  the  Court  may  deem  it  right  and  proper  to 
certify  to  the  Supreme  Court  for  its  instruction ;  and 
it  will  undoubtedly  be  governed  by  the  same  principles 
which  have  been  adopted  and  followed  by  that  Court. 

The  finality  of  the  decisions  of  the  Court  is 
extended,  also,  to  all  cases  arising  under  the  patent 
laws,  under  the  revenue  laws,  under  the  criminal  laws 
(that  is  to  say,  in  cases  of  inferior  crimes  which  cannot 
be  carried  directly  to  the  Supreme  Court),  and  in 
admiralty  cases.  These  branches  of  jurisprudence 
embrace  almost  all  the  jurisdiction  of  the  Court.  Very 
little  is  left  of  the  class  of  cases  that  will  come  to  it 
which  can  be  carried  to  the  Supreme  Court  except  by 
certificate  or  certiorari. 

Of  course  we  cannot  forecast  the  rules  by  which 
the  Court  will  be  governed  in  making  such  certificates, 


U.  S.  CIRCUIT  COURT  OF  APPEALS.  273 

but  we  can  say  that  it  ought  to  be  cautious  about 
making  them,  and  counsel  ought  to  be  considerate  in 
demanding  them,  for  the  Court  must,  in  the  end, 
depend  very  much  upon  the  Bar  for  the  manner  in 
•which  justice  shall  be  administered. 

I  look  upon  this  as  a  very  important  period  in 
our  history  with  regard  to  the  administration  of  jus- 
tice in  the  Courts.  When  we  see  the  turbulence  that 
exists  in  some  portions  of  the  community,  people  tak- 
ing the  law  into  their  own  hands  and  exercising  what 
is  called  Lynch  law,  without  reference  to  the  Courts  of 
Justice  or  to  the  Government  of  the  country,  it  is  a  sad 
spectacle  to  every  man  who  has  the  good  of  the 
country  at  heart.  Why  is  it  ?  Does  it  arise  from  the 
nature  of  our  population  or  government,  or  does  it 
arise  from  defects  in  the  administration  of  justice  by 
the  Courts  ?  In  my  judgment,  it  is  greatly  due  to  the 
latter.  If  the  laws  were  administered  with  firmness 
and  promptness,  there  would  not  exist  such  a  strong 
disposition  on  the  part  of  the  people  to  take  the  law 
into  their  own  hands.  There  would  be  two  reasons 
to  prevent  it ;  their  fear  of  the  law  against  themselves 
for  the  unlawful  act,  and  the  fact  that  justice  would 
be  done  by  the  Courts  without  their  interference. 

How,  then,  can  this  evil  be  remedied  by  the  Courts 
so  far  as  it  depends  on  their  mode  of  administering 
justice  ?  There  is  only  one  way,  and  that  is  to  be 
more  firm  and  prompt  in  its  administration.  We  have 
an  example  before  us  in  the  administration  of  justice 
in  England  by  which  we  might  well  profit.  There  we 
do  not  see,  as  with  us,  such  endless  controversies 
raised  out  of  a  particular  case  and  carried  through  all 
the  Courts.  This  is  not  the  fault  of  the  Courts  alone. 


274  MISCELLANEOUS    WRITINGS. 

There  is  ground  for  condemning  the  Bar  for  insisting 
upon  minute  points  and  refusing  to  accept  the  decisions 
of  the  Courts  of  first  instance,  and  seeking  an  appeal 
to  the  Court  of  last  resort  in  every  case  on  every 
trivial  question.  The  Bar,  in  justice  to  itself,  should 
seek  reform  in  this  regard.  Could  such  a  state  of 
things  exist  in  England  ?  Assuredly  not.  The  bar- 
risters of  England  would  feel  a  blush  of  shame  to 
carry  before  the  Courts  of  Appeal  such  cases  as  are 
constantly  urged  before  the  Courts  of  Appeal  in  this 
country.  Why  ?  Because  there  is  in  them  a  love  of 
justice  created  either  by  their  education  or  their  sur- 
roundings that  makes  them  more  regardful  of  the 
honor  of  the  Court  and  their  own. 

We  can,  if  we  please,  through  our  Bar  Associations 
and  other  influences,  reform  this  evil,  and  it  ought  to 
be  reformed. 

The  Courts  themselves  are  not  free  from  blame  in 
contributing  to  produce  the  evil  complained  of.  They 
betray  a  want  of  firmness  and  of  loyalty  to  the 
demands  of  justice.  In  criminal  cases  they  give  way 
too  much  to  their  sympathies.  They  partake  too 
much  of  the  feeling  of  the  community,  which,  after  a 
time,  always  sympathizes  with  the  guilty  instead  of 
sympathizing  with  those  who  have  been  injured  by 
them.  And  in  civil  cases  there  is  often  a  want  of 
conscientious  performance  of  duty.  It  not  infrequently 
happens  that  important  cases  are  submitted  without 
argument,  or  only  formally  argued,  before  an  inferior 
Court,  and  formally  decided  by  that  Court,  for  the 
mere  purpose  of  carrying  them  up  to  the  Court  of  last 
resort.  This  is  all  wrong.  It  turns  the  Court  of 
Appeal  into  a  Court  of  original  jurisdiction.  It  takes 


U.  S.  CIRCUIT  COURT  OF  APPEALS.  275 

from  the  inferior  Court  that  sense  of  responsibility 
which  it  ought  to  possess,  and  lowers  it  in  the  esti- 
mation of  the  Bar  and  the  public.  Every  Court 
ought  to  give  to  each  case  presented  to  it  as  full  and 
as  grave  consideration  as  if  no  right  of  appeal  existed. 
This  would  often,  and  should  much  oftener  than  it 
does,  end  the  litigation  ;  and  if  an  appeal  is  taken,  it 
would  give  the  Court  of  Appeal  the  benefit  of  a  full 
consideration  of  the  subject  by  the  inferior  Court. 

Perhaps  in  these  remarks  there  is  too  great  an 
appearance  of  what  might  be  called  judicial  scolding, 
but  it  seems  to  me,  and  it  has  long  seemed  to  me,  that 
they  are  founded  in  truth. 

This  Court  and  the  other  Courts  of  Appeal  organized 
to-day  are  destined  to  exercise  an  important  influence 
on  the  jurisprudence  of  the  country ;  for  notwith- 
standing the  occasional  supervising  influence  which 
may  be  exercised  by  the  Supreme  Court,  practically 
these  Circuit  Courts  of  Appeal  will  be  the  courts  of 
final  resort  in  all  cases  of  Federal  jurisdiction,  except 
those  directly  appealable  from  the  District  and  Circuit 
Courts  directly  to  the  Supreme  Court. 

It  will  not  probably  be  my  lot  to  continue  long  in 
assisting  to  carry  on  the  business  of  the  Court,  but 
I  hope  and  believe  that  by  the  aid  of  an  intelligent 
and  honorable  Bar,  the  Court  will  be  a  blessing  to 
this  community  and  to  the  country. 

I  believe  we  have  no  business  before  us  to-day, 
and  when  we  adjourn  we  shall  probably  adjourn  for 
the  term.  Any  business  required  to  be  done  during 
the  vacation  can  be  done  by  a  single  Justice  or  Judge. 

Hon.  Wayne  MacVeagh  then  spoke  as  follows : 

May  it  please  your  Honors  :  The  Bar  of  this  city, 


276  MISCELLANEOUS   WRITINGS. 

and  our  brethren  of  other  districts  who  are  to  be  asso- 
ciated with  us  hereafter  as.practitioners  at  the  Bar  of 
this  Court,  felt  that  it  was  due  to  testify,  at  least 
by  our  presence  if  jnothing  more,  the  profound  inter- 
est we  feel  in  the  Court  which  has  just  been  organ- 
ized and  the  expectation  of  great  good  which 
we  cherish  from  its  future  history.  No  assurance 
of  mine  of  the  extent  of  the  interest  of  the  Phil- 
adelphia Bar  in  the  organization  of  the  Court 
which  has  just  taken  place  could  equal  the  assurance 
given  by  this  very  large  and  representative  assembly 
of  its  members.  And  I  know  I  speak  for  every  one 
of  them  in  saying  that  they  have  been  thrice  repaid  for 
coming  here  if  nothing  else  had  been  offered  them 
but  the  privilege  of  listening  to  the  remarks  of  the 
Associate  Justice  of  the  Supreme  Court  of  the  United 
States,  who  is,  by  law,  the  presiding  officer  of  this 
Circuit  Court  of  Appeals  of  the  United  States  for 
the  third  Circuit. 

There  has,  indeed,  been  nothing  in  what  he  has  said 
which  does  not  meet  with  the  hearty  approval  of 
this  Bar,  I  am  sure,  except  one  thing,  and  against 
that  we  enter  our  vigorous,  our  united,  our  earnest 
protest :  that  there  shall  be  a  long  period  yet  in 
which  justice  in  this  Circuit  Court  will  be  adminis- 
tered, by  the  favor  of  God,  with  his  assistance. 

Your  Honors  may  be  sure  that  the  Bar  of  Phil- 
adelphia has  never  for  a  single  day  since  the  organ- 
ization of  the  Federal  Judiciary,  been  in  the  slightest 
danger  of  undervaluing  it.  It  began  its  life  here. 
Some  of  its  most  illustrious  members  had  previously 
given  the  benefit  of  their  learning  and  character  to 
this  Bar.  We  have  contributed  to  its  distinction 


U.    S.    CIRCUIT   COURT   OF    APPEALS.  277 

and  honorable  history ;  and  in  all  that  long  period 
of  more  than  a  hundred  years  there  has  never  been  an 
hour  when  a  member  of  the  Federal  Judiciary  con- 
nected with  the  administration  of  justice  in  this  Circuit 
has  not  had,  not  only  the  respect,  but  the  affectionate 
reverence  of  the  members  of  the  Philadelphia  Bar ;  and 
they  quite  agree  with  Mr.  Justice  Bradley  in  thinking 
that  there  never  were  days  in  the  past  more  likely  to 
ascertain  and  establish  the  ultimate  value  of  the  Fed- 
eral judicial  system  than  the  days  of  the  immediate 
future.  And  we  know  very  well  that  if  justice  is  to 
be  administered  in  America  hereafter  to  the  satisfaction 
of  the  great  body  of  our  fellow-men,  it  must  be  prompt 
and  certain  and  pure,  all  within  reasonable  limits  of 
human  infirmity,  and  that  in  the  securing  of  such 
promptness  and  certainty  and  purity,  the  Bench  must 
almost  entirely  rely  upon  the  Bar;  and,  for  one,  I 
have  no  doubt  that  the  Bar  will  answer  the  demand 
upon  it  in  the  future  as  it  has  answered  it  in  the  past. 
No  doubt,  in  the  hurry  and  turmoil  of  professional 
business,  we  have  fallen  away  somewhat  from  our 
former  high  estate.  We  are  more  commercial  and  less 
judicial ;  we  are  not  quite  up  to  the  standard  even  of 
our  own  selves  of  thirty  years  ago  ;  but  that  is  because 
in  the  great  material  development  of  a  great  and 
growing  country,  standards  not  quite  as  worthy  as 
the  old  ones  have,  to  some  extent,  displaced  them. 
That  is  only  a  passing  phase  of  American  history, 
and  will  disappear  -with  other  evils  which  have  marred 
our  progress.  As  that  phase  disappears,  the  members 
of  the  Bar  of  America  will  be  worthy  of  the  illustri- 
ous names  which  gave  such  distinction  to  its  past  his- 
tory;  and,  in  the  meantime,  speaking  for  the  Bar, 


278  MISCELLANEOUS   WRITINGS. 

may  I  venture  to  suggest  that  there  is  one  way  in 
which  the  Bench  can  greatly  help  us  to  be  more  worthy 
of  our  opportunities  and  our  traditions  ?  and  that  is 
by  a  little  more  endeavoring  to  recognize  us  as  barris- 
ters, and  a  little  less  regarding  us  as  attorneys  only. 
If  you  would  think  of  us  a  little  more  as  we  really 
are,  your  brothers,  sworn  to  the  same  fealty  to  justice 
as  you  are,  whose  time  is  as  valuable  to  us  as  yours 
can  be  to  you,  whose  opportunities  of  knowing  when 
and  how  justice  can  be  properly  administered  are  at 
least  as  great  in  any  particular  case  which  we  have 
studied  long  as  yours  can  be  hearing  of  it  at  the  moment. 
If  you  will  only  consider  that  a  lawyer  is  a  sworn 
officer  of  justice  and  not  likely  to  disregard  his  oath, 
and  that,  therefore,  when  we  come  before  you,  the 
humblest  and  the  youngest,  especially  the  humblest 
and  the  youngest,  we  ask  you  to  receive  us  upon  the 
presumption  that  we  will  not  waste  a  moment  of 
your  time  or  of  our  own  ;  that  we  will  not  trifle  with 
any  of  the  rights  belonging  to  anybody  else  any  more 
than  we  will  willingly  suffer  our  own  to  be  betrayed ; 
and  that  in  all  ways  we  are  your  helpers  as  well  as 
your  brothers  in  the  administration  of  justice. 

And,  then,  too,  we  must  ask  you  occasionally  to 
forget  that  you  are  upon  the  Bench,  and  to  remember 
that  you  are  living  in  America  and  at  the  close  of  the 
nineteenth  century,  with  the  telegraph,  with  the  tele- 
phone, with  all  the  innumerable  activities  of  modem 
life  pressing  upon  everybody,  and,  therefore,  \vhen  no 
lawyer  competent  for  important  legal  business  can 
always  be  at  your  call.  He  wishes  to  be,  but  if  in 
any  important  question  he  is  competent  to  advise  you, 
he  owes  his  first  allegiance  to  the  Supreme  Court  of 


U.    S.    CIRCUIT   COURT   OF   APPEALS.  279 

the  United  States ;  he  owes  his  second  allegiance,  in 
my  theory,  to  the  Supreme  Court  of  his  own  State ; 
and  his  third  allegiance  he  owes,  I  admit,  to  the  Cir- 
cuit Court  of  Appeals  for  the  Third  Circuit.  Now,  if 
you  will  recognize  the  order  of  these  obligations,  and 
if  you  will  have  patience  with  us,  we  will  endeavor 
to  be  a  little  more  worthy  of  your  confidence  and 
regard. 

I  listened  with  great  pleasure  to  what  Mr.  Justice 
Bradley  said  when  contrasting  the  English  Bar  with 
ours ;  but  I  could  not  help  thinking  while  he  was 
speaking,  that  a  recent  judicial  experience  in  England 
could  have  no  parallel  here.  We  have  no  court  of 
justice,  which,  if  any  man  was  on  trial  for  his  honor, 
could  be  changed  into  a  pleasure  ground,  as  was  done 
there  ;  and  no  ladies,  high  born  or  otherwise,  would 
be  allowed  to  amuse  themselves  while  a  tragedy  was 
being  enacted  which  possibly  was  to  doom  many 
people  to  misery  and  one  to  dishonor.  And  yet  we 
have  many  things  to  learn  here ;  many  changes  we 
hope  to  make ;  many  improvements  we  hope  to  wit- 
ness. In  them  all  we  will  never  lose  sight  of  the 
inexpressible  debt  of  gratitude  we  owe  to  the  Federal 
Judiciary,  for  to  it  we  signally  owe,  in  my  judgment, 
and  especially  in  the  last  twenty -five  years  of  its  his- 
tory, the  final  establishment  of  the  true  doctrine  that 
the  American  Government  is  "an  indestructible  Union 
of  indestructible  States."  That  Court  and  this  Court 
and  our  own  State  Courts  will  all,  I  trust,  in  the 
future  as  in  the  past,  continue  to  teach  the  American 
people  the  one  lesson  they  need  always  to  garner  in 
their  hearts— and  that  is,  that  the  only  liberty  worth 
having  is  liberty  regulated  by  law. 


280  MISCELLANEOUS   WRITINGS. 

Hon.  Anthony  Higgins,  Senator  of  the  United 
States  from  Delaware,  then  spoke  as  follows : 

With  submission  to  your  Honors,  I  have  been 
requested  to  say  a  word  on  this  interesting  occasion 
on  behalf  of  my  brethren  of  the  Bar  of  the  District 
of  Delaware,  some  of  whom  are  here  in  person,  to 
testify  to  that  deep  interest  which  all  feel  on  this 
most  important  occasion,  one  which  has  been  truly 
said  by  his  Honor,  Judge  Bradley,  to  be  an  event  of 
the  first  moment. 

It  will  not  be  out  of  place  to  recall  a  word  of  the 
history  of  the  enactment  of  the  statute  under  which 
this  Court  has  been  organized.  As  the  bill  passed  the 
House  of  Representatives,  it  was  structurally  different 
from  its  final  shape.  The  Judiciary  Committee  of  the 
Senate  entertained  profound  differences  of  opinion  as 
to  the  true  form  that  the  act  should  take,  and  it  ended 
in  being  left  substantially  with  Mr.  Evarts  and  Mr. 
Hoar  to  determine  what  that  should  be,  and  especially 
to  Mr.  Evarts;  and  the  bill  in  the  shape  as  they 
approved  of  it  with  the  minor  amendments  was 
adopted  by  the  Senate,  and  then  through  circum- 
stances that  are  measureably  obscure  and  need  not 
further  be  referred  to,  final  action  was  postponed  until 
a  few  days  before  the  end  of  the  session,  when  the 
only  possibility  of  the  bill  becoming  an  act  rested  in 
the  adoption  of  the  bill  as  it  passed  the  Senate  by  the 
House,  and  in  that  form  it  was  passed,  and  so  it 
came  about  that  this  most  important  act  received  its 
final  shape  from  the  hands  of  one  of  the  most  emi- 
nent members  of  the  American  Bar. 

The  action  thus  at  last  taken  by  the  Government 
for  the  relief  of  the  suitors  in  its  Courts  was  in 


U.    S.    CIRCUIT   COURT   OF   APPEALS.  281 

great  measure  due  to  the  agitation  of  the  subject 
by  the  American  Bar  Association,  upon  whose  com- 
mittee were,  among  others,  Mr.  Francis  Rawle,  of 
Philadelphia,  and  Mr.  George  H.  Bates,  of  Delaware ; 
and  a  large  part  of  this  honorable  effort  was  made 
by  other  members  of  the  Bar  of  this  Circuit,  who 
were  upon  the  committee  in  charge  of  it,  and  espec- 
ially, Hon.  Henry  Reed,  and  Mr.  Samuel  G.  Thomp- 
son, of  Philadelphia. 

The  idea  that  impresses  me  most  to  day  is  that, 
during  the  judicial  history  of  this  country,  the  Supreme 
Court  of  the  United  States  has  discharged  the  great 
function  of  being  the  governor,  the  directing  agency, 
in  the  final  determination  of  the  law  on  that  wide 
scope  of  commercial  and  other  questions,  questions 
not  of  Constitutional  law,  which  have  now  been 
taken  from  that  jurisdiction  and  conferred  upon  the 
Circuit  Courts  of  Appeal.  The  momentous  considera- 
tion resting  before  the  members  of  these  Courts 
throughout  the  country  is  that  this  great  function, 
this  great  discretion,  this  great  power,  is  now  vested 
with  them  very  largely,  subject,  of  course,  to  cases 
being  carried  by  certificate  to  the  Supreme  Court  either 
upon  the  initiative  of  the  Circuit  Court  or  by  the  order 
of  the  Supreme  Court  itself,  but  as  that  can  only 
happen  in  a  few  cases  in  the  substantial  administra- 
tion of  justice,  this  great  power  is  now  with  this 
Court. 

As  we  look  back  over  one  hundred  years,  and  in  our 
imaginations  bring  up  the  day  when  the  Supreme  Court 
was  first  organized,  and  then  go  along  through  these 
hundred  years  and  realize  that  the  history  of  America, 
more  than  in  the  story  of  its  politics,  of  its  wars,  of 


282  MISCELLANEOUS   WRITINGS. 

its  territorial  aggrandizement,  has  been  in  the  judicial 
evolution  of  its  domestic  and  Constitutional  law,  we 
stand  with  reverence  here  to-day  at  the  opening  of  this 
new  chapter  of  our  national  and  our  judicial  history, 
and  I  can  only  speak  for  myself  and  my  brethren  of 
this  Bar  in  our  feeling  of  absolute  confidence  in  the 
honor,  in  the  capacity,  and  in  the  respect  for  the  great 
traditions  of  the  law,  that  we  feel  are  held  by  the 
members  of  this  Bench. 

Mr.  Justice  Bradley  then  adjourned  the  Court  until 
the  Third  Tuesday  of  September. 


THOMAS  HOBBES. 

Born  at  Melmesbury,  April  5,  1588.  Died  Decem- 
ber, 1679,  in  his  92d  year. 

I  bought  his  works  December,  1879.  For  his  auto- 
biography in  Latin,  see  Vol.  I,  Latin  Works  and 
"  Auctarium  "  thereto  by  R.  Blackbourne,  and  an  auto- 
biography in  Latin  verse.  Also  see  Appleton's  Ency- 
clopedia of  Biography,  Art.  Hobbes,  by  Professor 
Nichol,  1854,  highly  appreciative. 

Allibone's  Diet,  of  Authors,  where  is  a  list  of  his 
works,  and  quotations  from  a  catena  of  authors 
respecting  Hobbes  and  his  writings.  To  Allibone,  a 
free-thinker  is  like  a  red  rag  to  a  bull. 

Hobbes  was  acquainted  with  Lord  Bacon,  and 
assisted  him,  as  Aubrey  says  Hobbes  told  him,  in 
taking  down  his  notions,  and  turning  some  of  his 
essays  into  Latin.  This  must  have  been  about  1620, 
when  Bacon  was  Chancellor,  and  Hobbes  32  years 
old.  (Montague's  Life  of  Bacon,  Vol.  I,  p.  257. 
Note  3  I  to  life). 

Amongst  his  friends  were  also  Ben  Johnson, 
Edward,  Lord  Cherbury,  Lord  Clarendon,  Gallileo, 
Mersenne,  Gassendi,  Des  Cartes,  Selden,  Harvey  Chil- 
lingworth,  Cowley,  Chief  Just.  Vaughan,  Sir  W.  Dave- 
iiant,  Sam  Butler,  Auth.  A.  Wood  and  Aubrey. 

When  Bacon's  sixtieth  birthday  was  celebrated, 
22d  January,  1620,  at  York  House,  Ben  Johnson 
\vrote  a  poem  on  the  occasion,  and,  no  doubt,  Hobbes 
was  present.  (Montague's  Life  of  Bacon  259).  Bacon 
must  have  been  surrounded  by  a  galaxy  of  young  men 


284  MISCELLANEOUS   WRITINGS. 

of  genius.  He  liked  to  have  Hobbes'  assistance  because 
he  could  understand  him  better  than  the  others  could. 
At  20,  Hobbes,  after  graduating  at  Oxford,  went  as 
tutor  and  companion  to  the  son  of  Wm.  Cavendish, 
Lord  Barkley,  afterwards,  Earl  of  Devonshire,  and 
remained  in  the  family  for  the  greater  part  of  his 
long  life.  He  travelled  in  France  and  Italy  in  1610 
with  his  pupil,  and  again  in  1634  with  his  son. 

In  1640,  after  the  action  of  the  Long  Parliament 
indicated  the  approach  of  the  civil  war,  he  returned  to 
Paris  and  staid  their  until  1652,  part  of  the  time 
mathematical  tutor  to  Charles  II.  He  returned  to 
England,  however,  in  1652,  because  Charles  withdrew 
from  him  his  protection  on  the  appearance  of  the 
Leviathan. 

His  life  in  the  Devonshire  family,  when  not  engaged 
in  the  duties  of  tutor,  was  spent  in  study  and  philoso- 
phizing in  the  summer  at  their  country  seat,  in  winter, 
at  their  house  in  London. 

His  principal  works  are  : 

Translation  of  Thucydides,  published  1628. 

De  Give,  Paris,  1642. 

De  Natura  Hominis,  London,  1650. 

De  Corpore,  politico,  London,  1650,  English. 

Leviathan,  London  1651. 

De  Corpore,  1655. 

De  Homine,  1657. 

Liberty  and  Necessity,  1654. 

Translations  of  Homer,  1674, 1675. 

Behemoth,  1679. 

And  many  pieces  on  Mathematics  and  Rational 
Philosophy.  He  was  undoubtedly  the  most  original 
thinker  of  England  in  his  time.  His  style  is  perspic- 


ESSAYS   AND   HISTORICAL  NOTES.  285 

nous  and  free  from  ornamentation,  exactly  suited  to 
philosophical  disquisition.  His  notions  are  regarded 
as  very  heterodox,  for  he  acknowledged  no  authority 
but  reason. 


AGE  OF  EGYPTIAN  CIVILIZATION. 

In  the  years  1851-1854  Mr.  Leonard  Horner 
(brother  of  Francis  Horner),  under  the  patronage  of 
the  Royal  Society  of  London,  made  a  series  of  exca- 
vations across  the  valley  of  the  Nile  in  the  latitudes 
of  Memphis  and  Heliopolis,  to  discover,  if  possible, 
the  character  and  age  of  the  alluvial  deposit.  He 
found  that  the  base  of  the  Colossal  Statue  of  Rameses 
II,  which  was  erected  about  B.  C.  1360,  was  covered 
by  nine  feet  four  inches  of  the  regular  accumulation 
of  alluvium,  making  for  the  average  from  B.  C.  1360 
to  A.  D.  1854  (or  3,214  years)  3V2  inches  for  each 
century.  His  excavations  near  the  same  spot  showed 
that  the  deposit  of  mud  below  the  base  of  the  statue 
was  30  feet,  and  he  found  fragments  of  pottery,  and 
other  works  of  man,  to  the  very  bottom.  This  would 
indicate  the  presence  of  human  civilization  in  the  Nile 
valley  for  a  period  of  10,300  years  before  Rameses  II, 
or  11,600  years  before  the  Christian  era ;  for  30  feet 
contains  360  inches,  and  this  divided  by  3Y2  inches 
gives  103  centuries.  Homer's  Report  was  published 
in  the  Transactions  of  the  Royal  Society  for  the  year 
1858,  pp.  53-92.  The  results  are  stated  in  Bunsen's 
"Egypt's  Place  in  History,"  Vol.  III.  Preface,  pp. 
xxiii,  etc. 

(See  also  Baldwin's  "Prehistoric  Nations,"  303). 


286  MISCELLANEOUS    WRITINGS. 

Bunsen  deduces  the  same  result,  as  to  the  antiquity 
of  the  aarly  inhabitants  of  Egypt  from  the  form  of 
the  Egyptian  language  as  compared  with  other  lan- 
guages to  which  it  is  related. 

For  a  flippant  review  of  Horner's  report  in  connec- 
tion with  Bunsen's  "  Egypt's  Place  in  History,"  see 
Quarterly  Review  for  April,  1859  (Vol.  CV,  pp.  230- 
232,  Amer.  Ed.),  and  see  Bunsen's  reply  in  Vol.  Y  of 
44  Egypt's  Place  in  History,"  p.  122.  See  also  "  Wil- 
kinson's Egypt,"  Vol.  I,  p.  8,  note. 


MACAULAY. 

They  say  Macaulay  was  not  a  critic  ;  that  he  had 
great  memory,  but  little  of  the  reasoning  faculty.  Is 
not  he  the  best  critic  who  can  analyze  without  rules  ? 
Who  sees  through  a  thing,  and  reports  its  essence 
without  taking  it  up  by  parts  and  pieces  ?  As  Carlyle 
said  of  Miribeau,  "  A  man  not  with  logic  spectacles, 
but  with  an  eye";  or  as  Coleridge  said  of  Wads- 
worth,  "  His  soul  seems  to  inhabit  the  universe  like 
a  palace,  and  to  discover  truth  by  intuition,  rather 
than  by  deduction." 

The  greatest  critic  of  modern  times  was  Lessing, 
whose  logical  faculty  and  power  of  analysis,  as  well 
as  healthy,  sound  judgment,  were  of  the  highest  order, 
and  whose  ideas  have  laid  the  foundation  of  the  best 
modern  criticism. 


ESSAYS    AND    HISTORICAL    NOTES.  287 


HISTORY. 

Macaulay's  "  History  of  England  "  from  the  acces- 
sion of  James  II  (1685),  which,  in  its  unfinished  state, 
as  he  left  it,  extends  only  to  1700,  makes  us  wish  that 
a  complete  history  of  England  could  have  come  from 
his  hands.  So  far  as  he  went,  his  work  is  so  com- 
plete, so  picturesque,  so  entertaining,  and  so  instruc- 
tive, that  it  has  all  the  charm  of  romance  with  all  the 
accuracy  of  annals.  A  tolerably  continuous  history 
of  England  and  portions  of  Europe  may  be  made  up 
from  his  reviews,  written  in  a  style  equally  animated, 
and  perhaps,  somewhat  more  rhetorical.  I  have  made 
an  arrangement  of  these  so  as  to  present  in  chrono- 
logical order  the  periods  discussed,  with  the  exception 
of  one  on  the  papal  history,  which  may  be  regarded 
as  an  appendix  to  the  rest.  Some  of  the  articles  have 
relation  to  literature ;  but  they  illustrate  the  periods 
to  which  they  relate.  Of  course,  this  list  does  not 
contain  all  Macaulay's  reviews,  but  only  such  as  con- 
stitute monographs  on  important  epochs  or  leading 
events  in  English  History. 

Macaulay's  historical  articles  in  the  Edinburgh 
Review. 


Review  of  "History,"  .  .  1828 
Hallam's  Constitutional  History  of  Eng- 
land, ....  Sept.  1828 
Burleigh  and  His  Times,  .  .  Elizabeth,  Apl.  1832 
Lord  Bacon,  .  .  .  James  I,  July  1837 
Hampden  (Memorials  of  H.),  .  .  Charles  I,  Dec.  1831 
Milton  (Puritan  and  Cavalier),  .  Commonwealth,  Aug.  1825 
Cowley  and  Milton  (Dialogue  on  the 

Rebellion),  .  .  •  Essays. 


288  MISCELLANEOUS   WRITINGS. 

PERIOD*  WRITTEN. 

Sir  William  Temple,           .           .            Charles  II,  001.1838 
Revolution  of  1688,  by  Mclntosh.XHere 

read  Macaulay's  history  itself).    .      James  II,  1838 

The  Spanish  Succession,    .          .  .    ,        William  III,  Jan.  1833 

Addison,           .           ..            ,           •      Anne,  July,  1843 
Atterbury's  Life  (Encyclopedia  Brit.,  8th  ed,) 

Horace  Walpole,          .            .            .      George  I,  Oct.  1833 

Lord  Chatham,       .  George  II,  j  £[  ^ 

Frederick  the  Great,    .            ,            .       George  III,  Apl.  1842 

Dr. Johnson  (Boswell's  Life,  by  "Croker,")  George  III,  Sept.  1831 
Dr.  Johnson,  Life  in  Encyclo.  Brit.,           George  III. 
Lord   Clive  (Establishment  of  Indian 

Empire),    .            .            .            .       George  III,  Jan.  1840 

Warren  Hastings  (Enlargement  of  do.),  George  III,  Oct.  1841 
William  Pitt.     Life  (Ency.  Brit.,  8th  Ed.),  George  III. 

Mirabeau.     French  Revolution,     .            George  III,  1832 

Barere's  Memoirs,        .            .            .       George  III,  Apl.  1844 

Madam  D'Arblay,  .            .            .    .         George  III,  Jan.  1843 

Sir  J.  Mclntosh.           .            .            .      XIX  Century,  July  1835 

Lord  Holland,         .            .            .            XIX  Century,  July  1841 

Leigh  Hunt,      ....       XIX  Century,  Jan.  1841 

Ranke  on  the  Popes,           .            .            Appendix,  Oct.  1840 

Whoever  will  read  these  articles,  generally  more 
interesting  than  a  novel,  keeping  before  him  any  com- 
mon outline  School  History  of  England,  for  the  pur- 
pose of  keeping  right  in  dates,  reigns  and  principal 
events,  and  personages,  will  master  English  History 
in  the  most  charming  way,  and  will  have  such  strik- 
ing pictures  of  those  events  stamped  upon  his  mind, 
that  he  can  never  forget  them.  Of  course,  the  formal 
work  quoted  at  the  head  of  this  memorandum  should 
also  be  read  at  the  proper  place,  after  reading  the 
review  on  Sir  James  Mclntosh's  History  of  the  Revo- 
lution. 

I  earnestly  recommend  this  course  to  my  children. 
To  it  should  be  added  "  Green's  History  of  the  Eng 


ESSAYS    AND    HISTORICAL    NOTES.  289 

lish  people,"  and  "  Molesworth's  History  of  England 
from  1830  to  1874."  (Instead  of  Molesworth,  there  is 
now  a  more  entertaining  book— McCarthy's  History 
of  Our  Own  Times.) 

For  American  history,  Hildreth's  is  the  most  com- 
plete, as  to  the  time  covered  by  it.  After  reading 
Hildreth,  Bancroft's  more  elaborate  work,  as  recently 
condensed  in  six  volumes,  should  be  read.  Bancroft 
has  taken  infinite  pains  to  be  accurate,  and  has  altered, 
added  and  corrected  every  successive  edition.  But 
his  work  only  comes  to  the  close  of  the  Revolutionary 
war.  (1882.  It  now  embraces  the  History  of  the 
Constitution). 

For  general  history,  I  still  adhere  to  Tytler; 
though  he  must  be  dull  to  a  young  person,  and  read 
as  a  task.  However,  I  know  of  no  other  original 
work  comparable  to  his.  There  is  a  pictorial  "  History 
of  the  World,"  in  one  large,  thick  volume,  which  is 
very  full  and  complete. 

Dr.  Russell's  Ancient  and  Modern  Europe  is  very 
readable  and  useful. 

Of  course,  no  person  can  claim  to  be  intelligent 
without  reading  the  great  standard  works  on  history 
which  adorn  English  literature  ;  such  as  Hume,  Rob- 
ertson and  Gibbon.  Clarendon  and  Burnet  are  com- 
plete as  to  the  seventeenth  century,  Grote,  Ferguson, 
Merivale  on  Greece  and  Rome,  and  Froude  on  Eliza- 
beth, and  Allison  on  the  French  Revolution,  among 
English  writers,  and  Prescott,  Motley  and  Irving 
among  Americans ;  with  good  translations  of  Hero- 
dotus, Thucydides,  Polybius,  Livy,  Tacitus  and  Caesar 
among  the  Greeks  and  Romans ;  and  of  Father  Paul, 
Davilo,  Sully,  Voltaire  and  Thiers  among  the  Italians 


290  MISCELLANEOUS   WRITINGS. 

and  French.  Of  course,  this  enumeration  is  very 
incomplete,  and  does  not  include  many  masterpieces 
which  any  one  laying  any  claim  to  scholarship  should 
read  and  master. 

(NOTE.— A  good  consecutive  History  of  England, 
elegant  and  entertaining,  will  be  found  by  reading 
successively,  1st,  Hume  ;  2d,  Macaulay  ;  3d,  Stanhope 
(Anne),  Mahon  (1713-1783),  McKnight  and  Mc- 
Carthy). 


CARLYLE'S  "FRENCH  REVOLUTION." 

Carlyle's  "  French  Revolution,"  is  wrongly  entitled, 
"The  Frenck  Revolution,"  a  "History,"  it  should 
have  been  entitled,  "  The  French  Revolution,"  a 
"  Poem ";  not  because  it  is  a  fiction,  or  a  romance 
in  the  sense  of  fiction,  but  because  its  whole  frame 
and  cast  and  filling-in  are  poetical  and  nothing  else. 
All  it  wants  is  the  common  poetical  garb  of  verse 
to  make  it  a  complete  poem  in  form  as  well  as  sub- 
stance. Look  at  that  incomparable  vision  described 
in  the  fourth  chapter  of  book  IV,  entitled  "  The  Pro- 
cession of  the  States-General."  Is  there  anything 
more  poetic  in  Homer  or  Virgil  ? 


LELAND   ON  THE  GYPSIES. 

SEPTEMBER  12,  1878. 

I  have  just  read  Leland's  "  English  Gypsies  and 
Their  Language,"  and  his  article  in  the  Edinburgh 
Review  on  the  same  subject.  He  is  about  to  publish 
a  vocabulary.  His  conclusions  are,  that  the  Gypsies 


ESSAYS   AND   HISTORICAL   NOTES.  291 

were  originally  pariahs  of  the  Natt  and  Dom  tribes  in 
the  West  of  India,  who  were  encouraged  to  emigrate 
to  Persia  to  furnish  amusements  to  the  people,  and 
who,  being  expelled  thence  for  their  thieving  propensi- 
ties, moved  westward  through  Armenia,  Syria,  Asia 
Minor,  Greece  and  Hungary,  to  Western  Europe. 
Here  they  first  appeared  in  the  Hanse  Towns  A.  D. 
1417.  Their  language  shows  traces  of  the  countries 
through  which  they  passed,  though  its  groundwork  is 
"  Hindustani,"  or  an  old  cognate  dialect  coming  from 
the ' '  Sanskrit. ' '  Many  words  are  pure ' '  Sanskrit, ' '  and 
they  still  retain  many  customs,  notions,  proverbs  and 
sayings  that  betray  "Sanskrit"  or  "Hindu"  origin. 
The  names  "  Rom  "  and  "Romany,"  by  which  they 
call  themselves,  Mr.  L.  thinks,  are  derived  from  "  Dom," 
"  Dommany,"  being  a  mere  corruption  of  pronuncia- 
tion, common  among  them.  They  call  Europeans 
"  Gorgios,"  which  may  be  a  corruption  of  "Georgi"; 
the  first  Christians,  perhaps,  whom  they  met  in  their 
progress  westward.  And  is  not  their  custom  of 
eating  the  flesh  of  animals,  which  have  died  a  natural 
death,  derived  from  the  institutes  of  Buddhism,  by 
which  the  killing  of  animals  is  forbidden.  Driven  to 
great  straits  for  food,  may  they  not  have  comprom- 
ised with  a  principle  inherited  from  of  old  and  deemed 
it  advisable  to  eat  the  flesh  which  had  not  been  killed, 
but  had  died  from  natural  causes  ?  Subsequent  inter- 
course with  other  nations,  it  is  true,  may  have  caused 
them  to  forget  the  original  institute,  and  to  eat  meat 
however  killed  ;  but  the  remaining  custom  of  eating 
the  flesh  of  animals,  dying  a  natural  death,  may  be 
indicative  of  experiences  through  which  they  had 


292  MISCELLANEOUS   WRITINGS. 

STOWE. 

The  first  settlement  in  Stowe,  Vt.,  was  made  by 
Oliver  Luce,  April  16,  1794,  a  mile  north  of  the  vil- 
lage, on  the  west  side  of  the  road  leading  to  Morris- 
ville,  a  little  south  of  the  fork  made  by  the  road 
that  leads  to  Morrisville  and  that  which  continues 
northerly. 

Oliver  Luce  was  born  in  Martha's  Vineyard,  July  5, 
1765,  and  died  at  Stowe,  December  2,  1852.  His 
monument  was  erected  by  the  town  over  his  grave 
in  the  old  burying  ground.  His  wife,  Susannah,  lies 
buried  by  his  side.  She  was  born  at  Plainfield,  N.  H., 
March  29,  1764,  and  died  August  9, 1826.  Their  son 
was  the  first  child  born  in  Stowe.  Joseph  Fuller,  now 
(1875)  82  years  old,  residing  at  Stowe  Hollow, 
informs  me  that  he  came  to  Stowe  1809,  twelve  years 
of  age.  At  that  time  there  were  only  three  houses  in 
the  village,  viz.:  a  log  house  at  the  corner,  opposite 
Squire  Butler's,  a  frame  house  opposite  the  hotel,  and 
one  further  down  near  the  Methodist  Church.  Four 
farm  lots,  of  one  hundred  acres  each,  originally  centered 
at  a  common  *  |i  point  about  thirty  feet  west  of  the 
hotel,  thus :  a|a  1  and  2  belonged  to  Dr.  Thomas 
B.  Downer ;  3,  to  William  Utley  ;  4,  to  Nathaniel  Russell. 
Dr.  D.'s  monument  states  that  he  was  born  at  Coventry, 
Conn.,  in  1773,  and  died  at  Stowe,  1851.  His  lots  em- 
braced the  Butler  cottage  and  Sunset  Rock,  which  was 
called  Dr.  Downer's  ledge.  He  practised  physic  at  Stowe 
to  the  close  of  his  life.  When  Fuller  first  came  to  the 
place  (1809)  the  grist  mill  was  owned  by  Asa  Ray- 
mond, who  built  it.  His  tombstone  states  that  he 
was  born  at  Middlebury,  Mass.,  in  1772,  and  died  in 


ESSAYS   AND   HISTORICAL  NOTES.  293 

1843.  Several  of  the  early  settlers  came  from  that 
place.  Raymond  bought  out  Caleb  George,  who  built 
the  first  mill  in  the  lower  village,  near  where  Pike's 
saw-mill  now  stands.  Lemuel  Thomas  had  built  and 
was  running  the  carding  and  fulling  mill  in  the  lower 
village.  Fuller  says  Capt.  Robinson  (now  90  years 
old)  came  to  Stowe  before  he  did.  Mrs.  Raymond 
tells  me  that  Asahel  Raymond,  a  cousin  of  Asa,  built 
the  old  hotel,  near  the  present  hotel,  which  still  forms 
one  of  the  back  buildings  ;  and  that  the  present  hotel 
was  built  in  1863,  an  addition  being  made  in  1874  or 
1875.  Asahel's  sons  conducted  it  a  while  after  his 
death,  and  then  sold  out  to  the  Mount  Mansfield 
Hotel  Co.,  got  up  by  Bingham  and  others.  A  man 
by  the  name  of  Peter  C.  Lovejoy  built  the  brick 
hotel  below  (now  owned  by  the  company),  which  was 
afterwards  purchased  by  a  Mr.  Churchill  and  converted 
into  a  tavern.  Churchill  formed  the  design  of  a  road 
to  the  top  of  the  mountain,  and  an  auxiliary  hotel 
there,  and  commenced  the  work,  but,  failing  in  busi- 
ness, his  property  was  sold  under  mortgage  and  pur- 
chased by  the  Mt.  Mansfield  Hotel  Company.  She 
says  that  Bingham  (W.  H.  H.)  was  brought  up  by 
Asa  Raymond  and  studied  law  with  Mr.  Butler  and 
became  Raymond's  executor,  who  left  half  of  his  estate 
to  the  Methodist  Church,  the  other  half  to  his  wife's 
relations.  Mrs.  Raymond's  husband  was  a  nephew, 
and  son  of  William  Raymond.  Asa  left  no  children. 
Bingham's  mother  and  Mrs.  Bingham's  mother  (she 
was  Alice  Camp)  were  sisters  of  Capt.  Robinson. 


294  MISCELLANEOUS  WRITINGS. 

HISTORY  OF  WASHINGTON  PARK,  NEWARK,  NJ. 

The  mistake  made  by  those  who  claim  Washington 
Park  for  a  market  place  is  in  supposing  that  it  was 
a  gift  from  the  Proprietors  to  the  town.  It  was  no 
such  thing.  The  patent  of  December  10,  1696,  grant- 
ing to  the  town  the  "training  place,"  the  "market 
place,"  the  "watering  place,"  the  "  burying  ground," 
the  "parsonage  lands"  and  "all  the  streets  of  the 
town,"  was  dated  thirty  years  after  the  settlement  of 
the  town,  and  after  all  these  portions  of  land  had  been 
laid  out  and  set  apart  by  the  town  people  themselves. 
The  Newark  settlers  bought  the  land  from  the  Indians 
with  the  license  of  the  Proprietors,  and  laid  out  the 
city  and  outlands  to  suit  themselves.  After  they  had 
been  several  years  in  possession,  the  Proprietors  set 
up  a  claim  to  quit-rents,  and  denied  that  the  people 
had  any  title.  The  controversy  lasted  a  long  time 
and  with  great  acrimony.  Finally,  the  people,  one 
by  one,  in  order  to  have  no  doubt  resting  on  the 
title  of  their  lands,  began  to  take  patents  (no  quit- 
rents,  however),  and  as  this  was  an  admission,  in  form, 
that  the  title  must  emanate  from  the  Proprietors,  the 
latter  were  satisfied  to  get  out  of  the  scrape  in  that 
way.  Near  the  end  of  the  century,  it  was  also 
thought  best  to  have  a  sweeping  patent  for  the  general 
balance  of  land  that  belonged  to  nobody  in  particu- 
lar ;  and  hence  the  patent  of  1696  to  trustees  named 
by  the  town. 

This  historical  review  evinces  this  fact ;  that  the 
common  lands  (embraced  in  the  patent)  belonged,  in 
truth,  to  the  town,  as  much  after  as  before,  and  as 
much  before  as  after,  the  grant,  and,  when  not  affect 


ESSAYS   AND   HISTORICAL   NOTES.  295 

ing  private  rights,  such  as  adjacency  to  streets  and 
highways,  the  town  could  dispose  of  them  for  such 
purposes  as  it  saw  fit.  The  action  of  the  town  has 
always  been  in  accordance  with  this  view.  The 
watering  place  which  lay  on  the  south  side  of 
Market  street  between  Harrison  street  and  the 
foot  of  the  hill,  and  extending  nearly  to  William 
street,  but  somewhat  gore  shaped,  being  no  longer 
needed  for  its  original  use,  was  left  out  and  finally 
sold  to  the  tanners  of  the  town  for  the  location 
of  the  tanneries ;  and  in  that  way  has  contrib- 
uted immensely  to  the  prosperity  of  the  town.  The 
burying-ground,  not  being  all  needed  for  that  purpose, 
and  the  north-east  corner  being  a  pond,  or  marsh, 
and  unsuitable  for  it,  the  town  and  church  let  out 
lots  around  the  margin,  which  greatly  benefited  the 
appearance  of  that  part  of  the  town,  multiplied  busi- 
ness facilities,  and  contributed  to  the  public  finances ; 
without  any  public  detriment.  The  court-house  and 
jail  were  erected  on  lots  granted  to  the  county  along 
Broad  street,  south  of  the  old  church,  which  stood 
about  where  the  engine-house  now  is,  and  neat  and 
tasteful  stores  were  erected  between  the  meeting-house 
and  Market  street.  Nobody  was  injured ;  the  town 
was  benefited  ;  the  public  good  was  furthered.  Then 
the  training  place,  being  no  longer  wanted  for  that 
use,  as  there  were  hundreds  of  places  in  the  vicinity 
much  better  fitted  for  it,  was  converted  into  a  public 
park,  and  planted  with  the  beautiful  trees  that  adorn 
it ;  first,  those  grand  old  elms  were  planted  about  the 
beginning  of  the  present  century,  and  the  interior 
trees  were  set  out  in  1838,  many  of  them  being 
brought  from  Prince's  nursery,  on  Long  Island,  and 


296  MISCELLANEOUS   WRITINGS. 

finally,  the  park  was  enclosed  with  an  iron  fence.     No- 
body has  been  injured   by%  it;   everybody  has  been 
benefited  ;  the  beauty  of  the  city  and  the  public  good 
of  the  town  have  been  subserved.     And  as  the  land 
really  belonged  to  the  city,  that  is,  to  the  town  people 
in  common,  no  man,  no  court,  had  a  right  to  interfere 
with  this  modified  use  of  it,  deleterious  to  no  one,  and 
more  subservient  to  the  public  interest.     The  Chan- 
cellor would  be  very  prettily  engaged,  to  be  sure,  in 
ordering  the  fence  and  all  the  trees  to  be  taken  away, 
and  Trinity  Church,  too,  in  order  that  companies  of 
soldiers  could  have  a  little  better  room  for  evolutions  ! 
Then,  again,  the  market  place,  Washington  Park,  was 
deemed  to  be  of  more  use  to  the  health  and  beauty  of 
the  city  by  making  a  public  park  of  it,  than  by  using 
it  for  a  market.     It  never  has  been  used  for  a  market 
for  now  two  hundred  and  twenty  years.     The  first 
market  that  was  built  for  the  town  was  not  built  on 
Washington  Park,  but  in  Market  street,  on  the  margin 
of  the  burying-ground,  in  a  low  spot  where  no  graves 
could  be  dug.     It  was  the  only  market  that  the  town 
had  for  many  years.     It  had  a  hall  above  in  which 
meetings  were  held,  and  when  the  old  court-house  at 
the  corner  of  Broad  and  Walnut  streets  was  burnt,  the 
courts  were  held  in  the  upper  part  of  the  old  market- 
house.     They  were  held  there  in  1835, 1836  and  1837, 
whilst  the  present  court-house  was  being  built.    When 
this  old  market  became  too  small,  what  next  ?     Did 
the  city  authorities  (the  collective  representatives  of 
all  the  town's  people)  go  uptown  and  take  Washington 
Park  for  a  market  place  ?     No.     They  purchased  the 
present  site  over  the   Morris   Canal  because  it  was 
more  central  and  more  convenient  to  the  people,  and 


ESSAYS  AND   HISTORICAL  NOTES.  297 

because  Washington  Park  had  been  converted  into,  or 
rather,  had  never  been  used  for  anything  else  than  a 
public  park,  and  property  had  been  purchased  and 
residences  built  around  it  on  the  faith  of  that  appro- 
priation. An  Academy  ("a  fine  two-story  stone 
building")  was  erected  on  it  in  1774,  which  was 
burnt  and  destroyed  as  far  as  it  could  be,  by  the 
British  and  Tories  in  their  savage  raid  of  January  25, 
1780.  From  that  time  to  this  the  planting  of  trees, 
the  erection  of  fences,  the  laying  of  \valks  have  been  in 
accord  with  the  actual  uninterrupted  appropriation  of 
this  ground  to  the  uses  of  a  public  ornamental  park, 
during  the  entire  history  of  the  town.  The  courts,  or 
the  City  Council  itself,  would  have  no  more  right,  now, 
to  deface  it,  and  convert  it  into  a  market  place,  than 
they  would  to  sweep  away  all  trees  and  structures 
from  Military  Common,  or  from  the  Watering  Place. 
And  why  ?  Simply  because,  upon  the  faith  of  the  acts 
and  conduct  of  the  town  for  over  two  hundred  years, 
rights  have  grown  up  which  cannot  be  disregarded 
and  overthrown.  The  plea  that  these  acts  and  con- 
duct are  in  violation  of  the  Patent  of  1696  has  been 
already  considered.  It  is  based  on  a  false  idea,  namely, 
that  the  public  lands,  commons  and  streets  of  Newark 
were  the  free  donation  of  the  Proprietors ;  whereas 
historic  truth  is  different,  and  shows  that  this  common 
property  belongs  to  the  town's  people  themselves,  to 
be  disposed  of  by  them  for  the  public  good  as  they 
deem  best,  and  not  to  the  private  injury  of  the  citizens. 
This  is  the  sound,  sensible  view  of  the  subject,  and 
law  is  never  found,  in  the  end,  to  be  at  war  with 
sound  sense  and  reason. 


298  MISCELLANEOUS   WRITINGS. 

TRUTH. 

1.  Statement  of  truth  is  brief.    Demonstration  of 
truth  is  long.     Confutation  of  error  is  both  long  and 
arduous. 

2.  The  masters  of  philosophy,  those  who  propound 
the  great  thoughts  on  which  human  conduct  hinges, 
are  never  prolix,  never  discursive.     They  are  usually 
sententious,  epigrammatic,  delivering  their  lessons  in 
aphorisms,  proverbs  or  parables.     They  see  truth  so 
clearly,  and  value  it  so  highly,    that   their  principal 
anxiety  is  to  announce  it,  and  impress  it  upon  man- 
kind.    They  have  not  the  time  or  patience  to  stop 
and  argue. 

3.  The   most  solemn  and   profound   truth    that 
man  can  utter,  and  which  has  the  greatest  influence 
on  his  life,  is  expressed  in  four  words.     There  is  a  God. 

4.  All  the  great  lessons  of  life  may  be  compre- 
hended in  a  few  simple  propositions,  understood  by  the 
simple,  whilst  the  wise  are  lost  in  the  maze  of  their 
own  discussions. 

5.  The  true  office  of  discussion  is  to  clear  away 
error  and  establish  truth. 

6.  Truth  is  simply  that  which  is;  error  is  the 
affirmation,  or  belief,  of  that  which  is  not. 

7.  That  which  is  may  be  either  an  existence,  or 
an  event.     The  former  continues  ;  the  latter  happens 
and  is  ended,  becoming  a  thing  of  the  past. 

8.  But  existences,  as  well  as  events,  may  belong 
to  the  past,  the  present,  or  the  future  ;  to  the  natural, 
or  to  the  spiritual  (or  moral)  world. 

9.  He  who  sees  through  the  phenomena  of  being 
most  clearly,  and  appreciates  that  which  is  most  sub- 
stantial and  enduring,  most  essential  and  important, 
has  the  clearest  view  of  Truth. 


ESSAYS   AND    HISTORICAL   NOTES.  299 

VARIETY  OF  INTELLECTUAL  CAPACITIES. 

There  is  nothing  more  true  than  that  to  different 
persons  the  same  words  suggest  different  ideas. 
Words  are  used  by  men  of  all  descriptions,  characters 
and  habits  of  association,  and  the  peculiar  circum- 
stances of  each  man  go  to  stamp  the  complexion 
of  the  ideas  he  attaches  to  words.  Men  of  genius, 
who  have  many  more  ideas  than  other  men,  yet  hav- 
ing only  the  same  words  to  convey  them,  or  represent 
them  which  they  have,  must  necessarily  attach  many 
more  ideas  to  the  same  term  than  others  do.  Some 
of  these  ideas  are  perhaps  so  evanescent  and  refined 
that  other  men  are  incapable  of  comprehending  them. 
It  is  the  prerogative  of  the  man  of  enlarged  capacity 
and  ready  wit,  to  comprehend  and  enjoy  the  most 
delicate  and  refined  touches  of  sentiment,  which  the 
writings  of  genius  contain,  as  well  as  the  more  gross 
and  obvious  conceptions  of  ordinary  men. 

There  is,  perhaps,  not  so  much  difference  between 
educated  minds  as  is  generally  estimated.  A  peculiar 
kind  of  talent  or  tact  is  required  to  succeed  in  the 
accumulation  of  •wealth,  honor  and  power.  Not  an 
extraordinary  share  of  mind.  Yet  the  possession  of 
one  or  other  of  these  external  accidents  is  one  of 
the  commonest  principles  from  "which  the  world  judges 
of  the  extent  of  a  man's  capacities.  The  truth  is  that 
every  educated  mind  contains,  in  itself,  a  world  of 
wondrous  powers  and  capacities.  The  principles  and 
springs  of  humanity,  possessed  in  common  by  enlight- 
ened men,  are  in  themselves  an  ocean,  compared  with 
which  the  differences  between  them  dwindle  into  insig- 
nificance. Like  the  arms  and  inlets  of  the  sea,  which 


300  MISCELLANEOUS   WRITINGS. 

compared  with  each  other  may  seem  to  present  wide 
disparities,  but  each,  in  turn,  claims  to  be  connected 
with,  and  but  a  part  of  the  boundless  main.  So  with 
the  differences  between  men.  They  may  seem  great, 
until  we  reflect  that  each  is  connected  with  the  ocean 
depths  of  a  common  humanity,  which,  all  alike,  enjoy. 
The  Andean  summits  do  not  all  peer  above  the  obscur- 
ations of  clouds  and  storms,  but  all  rise  far  beyond 
the  reach  of  animate  nature.  There  is  so  much  to 
admire  and  venerate  in  the  resources  of  every  immortal 
spirit  that  I  dare  not  speak  disparaging  of  any. 
The  humblest  son  of  science  has  so  much  in  common 
with  the  most  successful  suitor  of  renown,  that  I  dare 
not  speak  of  the  difference  between  them  as  worthy  of 
comparison  with  the  vastness  of  the  mental  capacities 
and  resources  of  either. 


WILL:    SELF-CONTROL. 

It  is  said  by  some  philosophers  that  "  the  will  is 
the  man."  It  is  this  that  determines  our  actions. 
Our  actions  determine  our  characters  and  destinies. 
What  we  are  is  answered  by  what  we  do.  This  dis- 
tinguishes men  from  each  other,  the  wise  and  prudent 
from  the  unwise  and  volatile — this  distinguishes  men 
from  brutes. 

The  highest  office  of  the  will  is  self-control.  Brutes 
are  governed  by  their  appetites  and  impulses.  Sav- 
ages are  but  little  removed  in  this  respect  from  brutes. 
Brutish  men  and  coarse  natures  are  mostly  led  by 
their  impulses,  appetites  and  passions.  The  true 
nobility  of  our  nature  is  evinced  by  self-control,  which 
restrains,  governs  and  subdues  the  impulses,  appetites, 
passions  and  desires. 


ESSAYS   AND    HISTORICAL   NOTES.  301 

Self-control,  tinder  the  names  "Eykpaleta"  and 
"2co(ppoffVYy"  in  Greek  and  Temperentia,  Continentia, 
Modestia  in  Latin,  is  ranked  as  one  of  the  four  cardi- 
nal virtues,  Justice,  Temperance,  Courage  and  Forti- 
tude. Of  these  the  parent  virtue  is  temperance,  or 
self-control. 

He  that  best  controls  himself  in  all  things  is  most 
noble  and  God-like.  "  He  that  is  slow  to  anger  is 
better  than  the  mighty,  and  he  that  ruleth  his  spirit 
than  he  that  taketh  a  city."  (Pro.  16:  32).  "He 
that  hath  no  rule  over  his  own  spirit  is  like  a  city 
that  is  broken  down  and  without  walls."  (Pro. 
25:  28). 


EXPERIENCE,  OR  SELF-IMPROVEMENT. 

It  is  the  duty  and  high  privilege  of  every  human 
being  to  endeavor  to  improve  himself.  Effort  at  self- 
improvement  is  the  definition  sometimes  given  for 
religion.  It  may  relate  to  our  actions  or  to  our  con- 
victions. In  our  actions  we  should  aim  at  goodness ; 
in  our  convictions,  at  truth.  (This  is  the  essence  of 
the  teachings  of  Confucius). 

One  of  the  best  means  of  arriving  at  just  conclu- 
sions, or  truth,  is  to  record  our  best  thoughts.  By 
clothing  them  in  -words  we  make  them  more  precise, 
determined  and  fixed.  For  this  purpose  it  is  a  good 
plan  to  keep  a  set  of  books  somewhat  analogous 
to  the  Journal,  Day  Book  and  Ledger  of  the  trades- 
man. The  Journal  should  be  always  at  hand  for 
recording  the  first  rough  form  of  our  thoughts, 
including  the  suggestions,  reasons  and  conclusions 


302  MISCELLANEOUS    WRITINGS. 

which  occur  to  our  minds  on  any  subject  in  which  we 
take  an  interest,  which  may  thus  be  caught  and 
secured  whilst  fresh  and  before  they  are  dissipated 
and  forgotten,  and  perhaps  forever  lost.  In  certain 
moods  and  frames  of  mind  we  have  glimpses  of 
truth,  which,  followed  out,  may  lead  us  to  interest- 
ing conclusions,  but  which,  once  displaced  by  other 
things,  can  never  again  be  recalled— at  least,  not 
with  the  same  vividness  and  strength.  The  second 
book,  analogous  to  the  Day  Book,  is  to  be  used 
for  copying  out,  with  abridgements  or  improvements, 
such  of  the  rough  entries  in  the  Journal  as,  on  subse- 
quent reflection,  seem  to  be  worthy  of  the  labor,  col- 
lecting together  under  a  single  head  all  the  observations 
which  we  have  made  on  one  subject.  The  third 
book,  analogous  to  the  Ledger,  should  be  employed 
for  a  last  and  final  recording,  in  the  most  accurate 
and  finished  form,  of  the  thoughts  and  conclusions  at 
which  we  ultimately  arrive  on  a  given  subject  or 
point,  after  having  read  and  re-read  the  previous 
entries,  and  sought  such  other  information  and  light 
from  books  and  men  as  our  opportunities  have  per- 
mitted. 

By  proceeding  in  this  manner,  and  drawing  the 
pen  across  the  entries  in  the  Journal  and  Day  Book 
respectively  as  fast  as  they  are  used  and  carried  for- 
ward into  the  succeeding  book,  a  man  of  ordinary 
reading  and  reflection  will,  in  the  course  of  a  few 
years,  find  that  he  has  amassed  a  rich  fund  of  exper- 
ience, which,  to  him  at  least,  will  be  of  inestimable 
value.  The  result  will  be  as  near  an  approach  to  wis- 
dom and  truth  as  his  opportunities  and  talents  are 
capable  of. 


ESSAYS  AND   HISTORICAL   NOTES.  303 

PRINCIPLES  SHOULD  BE  FIXED. 

When  a  young  man  arrives  at  the  age  of  twenty 
he  looks  around  him  in  the  wide  world  and  discovers 
that  opinions,  sentiments  and  principles  of  action 
are  very  various  and  different.  With  respect  to  each 
subject  presented  to  his  consideration,  and  each  course 
of  conduct  offered  to  his  choice,  he  can  take  but  one 
course,  or  else  he  must  remain  in  a  wavering,  undecided 
state.  Indecision  is  the  bane  of  healthy  conduct. 
Hence  it  behooves  every  one  to  choose  some  particular 
course  to  pursue  with  regard  to  his  opinions  and  sys- 
tems of  conduct  as  they  individually  present  them- 
selves. And,  if,  by  further  investigation,  he  finds  that 
he  has  adopted  the  wrong  course,  let  him  choose  the 
right  one.  In  order  to  make  a  proper  choice  of  the 
stand  which  he  will  take,  much  research  and  reflection 
will  be  necessary.  Let  him,  therefore,  examine  one 
subject  at  a  time,  and  having  made  his  decision 
respecting  that,  let  him  go  on  to  the  consideration  of 
something  else. 

For  example,  let  him  investigate  the  subject  of 
Slavery  and  its  influence  upon  our  country,  etc.,  until 
by  a  careful  comparison  of  the  arguments  that  each 
sect  and  party  on  the  subject  of  Slavery  bring  forward, 
he  is  able  to  decide  according  to  the  merits  of  the 
case  what  ought  to  be  done  in  relation  to  Slavery. 
Then,  having  once  satisfied  himself,  he  will  always  be 
ready  with  a  reason  for  the  opinions,  to  urge  upon 
those  who  may  differ  from  him,  and  if  he  is  ever  called 
upon  to  act  in  relation  to  the  subject,  he  will  know 
how 'to  act,  and  will  not  act  blindly.  Truth  and 
utility  combined  ought  to  be  the  object  for  which  we 


304  MISCELLANEOUS   WRITINGS. 

seek  in  every  investigation.  Many  have  an  opinion 
respecting  such  subjects,  but  do  not  know  how  they 
came  by  it— possibly  their  father  or  friends  think 
so— and,  therefore,  they  think  so  also ;  possibly  their 
own  interest  is  concerned  and  biased  their  judgment ; 
possibly  they  have  latent  prejudices  that  decide  them, 
but  whatever  it  be,  unless  they  have  carefully  investi- 
gated and  impartially  judged  the  subject,  they  are  not 
fitted  to  converse  on  it  in  promiscuous  society,  nor  are 
they  safe  in  adopting  the  conduct  which  their  opinions 
shall  at  any  time  dictate. 

After  having  examined  and  disposed  of  one  subject, 
let  him  proceed  with  another,  until  the  more  important 
of  those  which  are  agitated  in  the  society  of  which  he 
is  a  member  have  been  canvassed  by  him. 

He  will  generally  be  able  to  find  materials  and  facts 
to  guide  his  investigations  in  the  publications  that 
the  subject  elicit  and  in  the  perusal  of  history.  With 
these  data  and  sound  sense  for  his  guides,  he  will  gen- 
erally deviate  very  little  from  the  road  to  truth,  safety 
and  ultimate  honor.  (October  17,  1835). 

P.  S.— I  might  add  a  list  of  subjects  on  which  a 
young  man  would  do  well  to  decide  in  the  present 
times.  Some  follow  Abolitionism,  Colonization,  Con- 
solidation in  Policy,  Democracy,  Intemperance,  Benev- 
olent Associations  individually,  Methods  of  Education, 
Religious  equality,  Extension  of  Liberty  of  the  Press, 
Utility  of  Monopolizing  Associations,  Lotteries,  etc., 
etc. 


ESSAYS  AND   HISTORICAL   NOTES.  305 


FAMILY  HAPPINESS. 

How  much  the  happiness  of  life  depends  on  refine- 
ment in  taste,  and  the  cultivation  of  those  accomplish- 
ments which  gives  a  charm  to  the  domestic  circle  !  If  I 
wished  to  depict  a  happy  family,  I  would  describe  it 
as  one,  not  only  in  which  general  intelligence  and 
virtue  prevails,  but  in  which  the  arts  of  taste  are  suffi- 
ciently cultivated  to  be  appreciated  and  enjoyed;  in 
\vhich  vocal  and  instrumental  music  are  practised,  and 
conversation  is  varied  by  narration  and  discussion, 
and  ever  improves  in  expression  and  tone ;  in  which 
poetry,  painting,  sculpture  and  architecture  are  sub- 
jects of  intelligent  study  and  comment ;  in  which  the 
courtesies  and  amenities  of  life  are  never  forgotten, 
and  religion  and  morality  are  never  slightingly  men- 
tioned, and  in  which  affection,  mutual  forebearance  and 
gentleness  form  the  habitual  atmosphere.  How  can 
anything  bad  or  deformed  come  from  such  a  source  ? 
It  is  the  seat  and  fountain  of  social  order  and  good- 
ness ;  of  noble  character  and  honorable  achievement. 

(1875). 


HOME,  DEFINED. 

The  English  word  "  Home  "  cannot  be  fully  defined 
by  a  single  word  or  phrase.  The  following  is  an 
attempt  at  a  definition  made  forty  years  ago,  which  I 
find  on  the  fly  leaf  of  one  of  my  old  hymn  books. 


306  MISCELLANEOUS   WRITINGS. 

Home,  the  house  and  place  where  a  family  perma- 
nently dwells ;  where  they. bring  together  the  comforts 
they  can  command,  and  where  their  family  attachments 
and  memories  center. 

The  language  is  not  precisely  accurate,  and  may  be 
modified  thus : 

Home,  the  house  where  a  family  permanently 
dwells,  collects  its  comforts,  and  forms  its  attachments 
and  memories. 

November  14,  1876. 


HAPPINESS. 

Happiness  is  the  result  of  the  harmony  of  all  the 
faculties  in  their  co-existence  and  operation.  It  is  thus 
in  the  animal ;  it  is  thus  also  in  the  moral  nature  of 
man.  Discord  in  the  operation  of  the  animal  functions 
produces  pain ;  in  the  moral,  dissatisfaction,  mental 
uneasiness— greater  or  less  in  proportion  to  the  disor- 
der that  prevails.  Perfect  health  is  the  perfection  of 
animal  nature,  and  the  basis  of  the  greatest  physical 
enjoyment.  Perfect  harmony  of  the  mental  faculties 
produces  contentment,  peace  of  mind,  happiness.  In 
this  the  whole  moral  nature  must  combine — the  intel- 
lect, the  affections  and  passions,  and  the  conscience. 
If  either  is  disturbed,  the  man  is  disturbed.  As  in  the 
body,  if  every  organ  is  perfect,  except  the  heart,  and 
that  is  disordered,  the  whole  system  suffers.  So  in 
the  soul.  If  every  part  is  in  perfect  activity  except 
one  of  the  passions,  and  that  is  disturbed  by  undue 
excitement  or  improper  exercise,  the  whole  man  is  dis- 
tressed and  unhappy. 


ESSAYS   AND    HISTORICAL   NOTES.  307 

The  principle  is  universal  and  invariable  in  its 
application.  Like  gravity  in  the  physical  world, 
which  pervades  the  universe,  and  is  always  felt  and 
only  felt  when  resisted. 

A  man  is  most  happy  when  he  is  most  perfect,  and 
he  is  most  perfect  when  all  his  faculties  are  propor- 
tionately and  harmoniously  developed.  Thus  devel- 
oped, nature  and  art  and  society  supply  him  with  a 
thousand  sources  of  enjoyment.  Neither  his  taste  nor 
his  moral  feelings,  any  more  than  his  intellectual  fac- 
ulties, can  be  neglected  without  detriment,  and  with- 
out diminishing  his  enjoyment  of  existence.  The  ear 
should  be  tuned  to  harmony,  the  eye  educated  to  the 
perception  of  beauty  and  grace,  and  the  heart  instructed 
in  the  precepts  of  duty  and  religion  ;  and  these  should 
all  be  graduated  and  correlated  to  each  other.  With 
a  body  well  developed  and  trained  to  healthy  exercise 
and  agreeable  recreations,  a  mind  cultivated  and 
stored  with  useful  and  various  knowledge,  an  educated 
taste  and  a  heart  formed  to  love  and  follow  all  that 
is  good  and  generous  and  exalted,  the  result  is  physi- 
cal and  moral  health,  and  the  purest  and  most  perfect 
happiness  which  the  earth  affords. 

The  acquisition  of  an  accurate  and  easy  conversa- 
tion, of  some  skill  in  music,  and  in  pure  and  healthful 
diversions,  are  of  great  benefit  in  fitting  one  for  social 
intercourse,  in  which  one  of  the  greatest  sources  of 
pleasure  is  found. 

The  active  and  cheerful  performance  of  every  duty, 
the  assumption  and  discharge  of  every  proper  relation 
in  life,  are  also  necessary  to  the  perfection  of  the  man. 

Such  a  man  brings  with  him  and  spreads  around 


308  MISCELLANEOUS   WRITINGS. 

him,  wherever  he  goes,  a  glow  of  cheerfulness  and 
welcome,  and  the  production  of  happiness  in  others 
reacts  in  multiplying  his  own. 

His  home  should  be  the  center  of  this  beneficent 
influence,  and  from  thence  it  should  spread  to  every 
portion  of  the  society  in  which  he  is  known,  and  which 
forms  the  sphere  of  his  activities. 

February  11,  1877. 


TIME. 

The  immense  importance  of  time  in  all  human 
affairs  and  human  experience  can  never  be  fully  appre- 
ciated. One  man,  by  order  and  diligence,  may  almost 
be  said  to  command  time  and  become  its  master. 
Another,  by  negligence  and  procrastination,  becomes 
time's  slave,  and  finds  his  affairs  in  confusion,  his 
opportunities  lost  and  his  purposes  unaccomplished. 
The  former  leads  fortune  by  the  hand,  and  partakes 
her  choicest  favors.  The  latter,  with  weary  steps  and 
flagging  spirits,  finds  himself  far  in  the  rear  of  for- 
tune, and  the  victim  of  discouragement  or  despair. 
This  is  one  instance  of  the  importance  of  time. 

But  it  affects  us  in  ten  thousand  ways,  and  often 
without  any  ability  on  our  part  to  prevent  it.  It 
affects  men's  characters,  talents  and  destinies.  In 
studying  closely  the  laws  which  govern  observations 
in  astronomy,  and  other  professions  which  require 
an  accurate  note  of  phenomena,  it  has  been  discov- 
ered in  the  last  half  century  that  every  man  has 
what  is  called  a  personal  equation,  which  defines  his 
capacity  for  accurate  observation.  No  man  can 


ESSAYS   AND   HISTORICAL  NOTES.  309 

instantaneously  perceive  what  passes  before  his  senses, 
as,  for  example,  the  conjunction  of  two  planets,  or 
the  first  contact  of  two  heavenly  bodies.  It  would 
seem  that  this  belongs  to  omniscience  alone.  And  no 
two  men  have  exactly  the  same  capacity  for  imme- 
diate perception.  The  difference  between  them  depends 
on  their  respective  organization  of  brains,  nerves  and 
organs  of  sense.  This  equation  has  been  found  so 
important  in  observations  requiring  the  greatest 
accuracy  as  to  render  it  necessary  to  ascertain  by 
experiment,  and  to  record,  the  relative  personal  equa- 
tions of  the  different  employes  of  our  Coast  Survey. 
The  fraction  of  a  second,  which  each  requires  for 
perception,  is  measured,  and  is  always  deducted  from 
his  recorded  observations.  Wonderful  as  this  discov- 
ery is,  it  is  not  more  wonderful  than  other  things  in 
human  experience  to  which  attention  has  not  yet  been 
directed.  For  example,  a  certain  instant  of  time 
(almost  infinitesimal,  it  is  true),  occurs  between  the 
conception  of  an  idea,  and  for  the  word  which  stands 
for  and  represents  it.  The  ease  and  fluency  with 
which  one  man  can  express  his  ideas,  and  the  difficulty, 
tardiness  and  hesitation  which  is  experienced  by 
another,  depends  respectively  on  the  infinitesimal 
instant,  in  each  case,  required  for  calling  up  the  words 
which  represent  their  ideas;  in  other  words,  they 
depend  upon  the  rapidity  of  association  which  the 
two  men  respectively  possess.  Other  circumstances, 
of  course,  contribute  largely  to  make  up  the  difference 
between  them.  The  different  degrees  of  familiarity 
which  they  have  with  the  forms  of  expression,  depend- 
ent upon  their  relative  culture,  education  and  exper- 
ience, have  much  to  do  with  it.  One  man  may  have 


310  MISCELLANEOUS   WRITINGS. 

cultivated  the  use  of  language  all  his  life  ;  and  the 
other  may  have  neglected  it.  But  supposing  them  to 
be  equal  in  this  respect,  there  will  still  be  all  the  differ- 
ence in  the  world  between  them  in  their  respective 
powers  of  expression  and  utterance.  One  will  be 
brilliant,  ready  and  interesting ;  the  other  tedious  and 
drawling.  The  one  will  hold  crowds  hanging  on  his 
lips  with  bated  breath ;  the  other  will  disperse  them 
with  equal  facility. 

In  all  things,  time  is  an  essential  element.  Electricity 
requires  time  to  execute  its  effects.  Light  requires 
time  to  traverse  the  regions  of  space.  Thought 
requires  time  to  grasp  its  objects,  and  time  again  to 
clothe  them  with  expression.  And  he,  who,  in  all 
things  is  most  nearly  the  master  of  time  is  master  of 
the  world. 

February  10,  1877. 


THE  TEACHING  OF  CHILDREN. 

In  teaching,  regard  must  be  had  to  the  faculties 
possessed  by  the  pupil.  In  childhood,  memory;  in 
youth,  the  understanding ;  in  mature  life,  the  reason,  is 
the  predominating  faculty.  If  either  of  these  is  unduly 
exercised  out  of  season,  injury  is  sustained  by  the 
violence,  and  the  powers  in  condition  for  exercise  are 
unjustly  repressed  and  never  regain  their  proper  tone. 
Modern  school  books  and  methods  of  teaching  often 
disregard  these  fundamental  principles  of  our  nature. 
The  attempt  to  teach  spelling  and  etymology,  and  even 
natural  philosophy  at  the  same  time,  and  in  the  same 
lessons,  to  a  child  of  eight  or  ten  years,  is  absurd,  and 


ESSAYS   AND   HISTORICAL  NOTES.  311 

will  fail  in  every  direction.  The  rules  of  arithmetic, 
to  be  properly  and  usefully  learned,  must  be  learned  by 
heart,  without  attempting  to  stuff  the  mind  with  their 
reasons.  But  memory  may  be  aided  by  mechanical 
means.  Spelling  may  be  fixed  in  the  mind  by  the  chimes 
of  sound,  and  the  harmony  of  rhythm  striking  on  the 
drum  of  the  ear.  By  this  means,  long  columns  of 
words  having  the  same  number  of  syllables,  the  same 
accent  and  a  succession  of  like  vowel  sounds,  will 
become  indelibly  fixed  on  the  sensorium  so  that  the 
slightest  deviation  in  letter  or  sound  will  send  a  repul- 
sive thrill  through  the  nervous  system.  Rational 
spelling— that  is,  spelling  by  reason  and  rules — can 
never  compare  in  practical  accuracy  with  this  mechan- 
ical spelling  printed  upon  the  memory  and  the  brain 
in  childhood. 


FIT  EXPRESSIONS. 

Solomon  says,  "An  apple  of  gold  in  a  cushion  of 
silver,  is  a  word  spoken  in  season."  Prov.  XXV,  2. 
The  translation  of  this  proverb  has  had  many  varia- 
tions. The  "  Septuagint "  says,  "A  golden  apple  in  a 
setting  of  cornelian,  is  a  sentence  well  spoken."  The 
Latin  Vulgate,  "  It  is  apples  of  gold  on  beds  of  silver, 
when  one  speaks  a  word  in  due  season."  "  Coverdale," 
"A  word  spoken  in  due  season,  is  like  apples  of  gold 
in  a  silver  dish."  "  Cranmer,"  "A  word  spoken  in 
due  season  is  like  apples  of  gold  in  a  graved  work  of 
silver."  "  The  Geneva,"  "A  word  spoken  in  his  place 
is  like  apples  of  gold  with  pictures  of  silver."  "  The 
Bishop,"  "A  word  spoken  in  due  season  is  like  apples 


312  MISCELLANEOUS  WRITINGS. 

of  gold  in  a  graved  work  of  silver."  "  The  Author- 
ized," "  A  word  fitly  spoken  is  like  apples  of  gold  in 
pictures  (or  baskets)  of  silver."  In  another  passage, 
Solomon  breaks  forth  in  this  wise  :  "  A  word  spoken 
in  due  season,  how  good  is  it !"  Proverbs,  XV,  23. 
Here  is  an  attempt  to  express  an  important  truth — to 
wit,  the  masterly  power  and  beauty  of  fit  expression. 
The  great  truths  of  humanity  only  require  proper 
enunciation  to  secure  acceptance.  No  labored  proof  is 
necessary.  When  clothed  in  exact  and  appropriate 
expression,  they  address  themselves  to  the  intuitive 
consciousness  and  are  recognized.  Like  a  well  fitting 
garment  which  reveals  the  graces  of  the  person,  and  is 
itself  unnoticed,  so  apt  and  proper  expression  carries 
truth  home  to  the  understanding  and  heart  without 
diverting  the  fancy.  But  it  must  be  clear,  perfect  and 
free  from  redundancy.  It  must  also  be  striking ;  tame 
words  are  unheeded,  and  leave  no  impression.  The 
strong,  nervous  forces  of  the  language  are  requisite. 

A  truth  sometimes  lies  on  the  mind  for  years  before 
it  can  find  fit  utterance,  but  when  at  last  fitly  uttered, 
it  tells.  The  word  then  spoken  cannot  be  forgotten. 
It  finds  a  lodgment  in  every  heart. 

This  power  of  fit  expression  is  a  wonderful  moral 
force.  It  moves  senates  ;  it  moves  nations  ;  it  moves 
the  world.  A  mistake  is  often  made  by  the  young  in 
neglecting  its  cultivation.  They  cannot  duly  appre- 
ciate its  value.  Only  the  experienced  can  fully  do  so. 
They  are  apt  to  suppose  that  the  thought,  facts,  ideas, 
are  the  main  thing  to  acquire,  and  that  words  will 
come  of  themselves.  Facts  and  ideas  are  essential, 
but  no  more  so  than  the  power  of  correct  and  forcible 
expression.  They  are  like  unemployed  capital;  like 


ESSAYS  AND   HISTORICAL   NOTES.  313 

arms  laid  up  in  store,  until  the  power  to  use  and  wield 
them  has  been  acquired.  They  may  benefit  their  pos- 
sessor individually,  but  they  give  him  no  power  over 
others  until  he  has  learnt  the  art  of  communicating 
them  in  strong  and  beautiful  language. 

An  art,  it  certainly  is,  requiring  for  its  acquisition 
careful  study  and  constant  exercise;  and  this  study 
can  never  be  remitted.  It  is  as  necessary  at  fifty 
as  at  twenty-five ;  in  a  speech  to  the  senate,  as  in  a 
Sunday  school  address ;  but  when  acquired,  how 
transcendent  is  its  power ;  how  glorious  its  effects ! 

This  study  and  constant  use  are  as  necessary  to  a 
writer  as  to  a  speaker.  Nothing  tells  but  excellence ; 
nothing  is  excellent  but  what  is  the  result  of  labor. 

STOWE,  1877. 


ELOQUENCE.* 

"  The  impression  which  every  person,  whether  on 
the  platform  or  in  conversation,  makes  on  his  fellows, 
is  the  moral  resultant,  not  of  what  he  says,  but  of 
what  he  has  grown  up  to  be  ;  of  his  manhood,  weak 
or  strong,  sterling  or  counterfeit;  of  a  funded  but 
unreckoned  influence  accumulated  unconsciously  and 
spending  itself  according  as  the  man  is  deep  or  shal- 
low, like  a  reservoir,  or  like  a  spout,  or  an  April 
shower."  Prof.  Matthews,  in  "  Getting  On  in  the 
World." 

The  above  observation  is  so  true  that  the  wonder 
is,  it  has  never  been  made  before.  We  have  approaches 
to  it  in  such  proverbs  as  "  Actions  speak  louder  than 

•  See  Bolingbroke's  "Spirit  of  Patriotism,"  Works,  Vol.  IV,  p.  224. 
Bd.  1809.  Description  of  Demosthenes  and  Cicero. 


314  MISCELLANEOUS  WRITINGS. 

words,"  etc.  I  would  make  but  one  alteration  in  it, 
namely,  by  adding  the  words  "  so  much  "  after  the 
word  "not,"  so  as  to  read  "not  so  much  of  what  he 
says,  as  of  what  he  has  grown  up  to  be,"  etc.  An 
insignificant  man  may  utter  words  as  wise  as  even 
Solomon  uttered  without  producing  the  slightest 
impression;  whilst  the  same  words  spoken  by  one 
whom  we  have  learned  to  reverence  and  look  up  to, 
will  be  drunk  in  with  delight,  and  produce  a  lasting 
influence  upon  our  lives.  The  one  is  not  preceded  by 
any  preparation  on  our  part  to  appreciate  him  ;  whilst 
the  character  of  the  other  has  already  made  a  lodg- 
ment in  our  minds  which  disposes  us  to  pay  the  strict- 
est attention  to  his  speech,  and  to  give  it  the  fullest 
effect.  It  is  in  us,  not  in  the  speaker,  that  the  cause 
of  the  difference  of  impression  lies.  The  effective 
speaker  has  already,  by  his  previous  reputation, 
affected  us  in  his  favor.  We  listen  to  him  as  a  master, 
because  we  have  come  to  regard  him  as  such  before- 
hand. This  weight  of  character  which  thus  fills  out 
and  gives  due  effect  to  a  man's  utterances,  may  be 
partially,  though  but  partially,  supplied  by  the  favor- 
able presumptions  which  arise  from  his  appearance, 
air  and  manner,  which  presuppose,  or  give  reason  to 
presuppose,  those  characteristics  which  command  our 
confidence,  when  we  know,  or  believe  them  to  exist. 


STYLE. 


The  perfection  of  style  consists  in  the  use  of  the 
exact  speech  necessary  to  convey  the  sense  in  the 
fewest  words  consistent  with  perspicuity,  at  the  same 
time  having  regard  to  appropriateness  and  harmony 


ESSAYS   AND   HISTORICAL   NOTES.  315 

of  expression.  Its  greater  excellencies  are  directness, 
accuracy,  appropriateness  and  perspicuity.  When 
these  qualities  are  accomplished  with  a  clear  and  well 
modulated  enunciation,  the  thoughts  of  the  speaker 
go  straight  to  the  understanding  of  his  hearers,  keep 
their  attention  fixed,  and  leave  no  time  for  inclination 
to  wander,  criticise,  or  even  to  notice  the  manner  in 
which  they  are  conveyed.  The  desired  effect  necessarily 
follows,  whether  it  be  conviction  or  the  excitement  of 
the  emotions  or  passions.  When  mind  speaks  directly 
to  mind,  spirit  to  spirit,  it  gives  to  the  communication 
the  greatest  possible  power.  Redundancy,  circumlo- 
cution, inappropriate  diction,  cloud  the  senses,  divert 
the  attention,  produce  weariness  and  deprive  the 
effort  of  any  useful  effect. 

In  a  public  speaker,  besides  the  above  qualities  of 
style,  fluency  is  also  necessary,  by  which  I  mean  the 
power  of  readily  calling  up  the  exact  words  which  the 
style  requires.  When  these  excellencies  are  all  com- 
bined and  the  thoughts  are  vigorous  and  impressive,  the 
effect  is  irresistible.  The  mind  is  carried  along,  as  with 
a  whirlwind  to  the  point  which  the  speaker  desires. 

This  talent  of  effective  speaking  was  possessed  in 
an  eminent  degree  by  Lord  Bacon,  by  Vice-President 
Burr,  and  by  Mr.  Judah  P.  Benjamin.  The  secret  lies, 
not  in  fluency  merely,  but  also  in  the  exact  and  appro- 
priate selection  of  words  and  phrases  to  convey  the 
whole  sense  and  nothing  more.  Of  course  the  thoughts 
must  be  worthy  of  the  occasion. 

"  When  Atreus'  son  harangued  the  listening  train, 
Just  was  his  sense,  and  his  expression  plain, 
His  words  succinct,  yet  full  without  a  fault, 
He  spoke  no  more  than  just  the  thing  he  ought." 

Pope 's  Iliad,  III,  *?j. 

August  21,  1879.   (STOWE). 


316  MISCELLANEOUS   WRITINGS. 

METAPHYSICS. 


"  He  knows  -what's  what,  and  that's  as  high  as  metaphysic's  wit  can 
fly."— Hudibras. 


Metaphysics.  Metaphysical  writers  do  not  seem  to 
me  to  be  exact  enough  in  their  accounts  of  the  Human 
Mind.  Locke  refers  the  origin  of  all  our  ideas  to  Sen- 
sation and  Reflection.  Stewart,  meaning  the  same 
things,  to  Perception  and  Consciousness.  They  tell 
us  that  the  mind  is  conversant  about  no  other  ideas 
than  what  these  two  sources  furnish.  But  is  it  so  ? 
Let  us  see.  We  have  a  knowledge  of  eternal  things 
by  perception,  and  a  knowledge  of  Perception  by  con- 
sciousness. Thus  one  faculty  of  the  mind  contem- 
plates the  load-stone,  and  is  itself  immediately  reviewed 
by  another  faculty  of  the  mind.  Now,  in  contemplat- 
ing the  load-stone,  we  cannot  expect  that  we  are 
acquainted  with  all  its  properties,  or  know  all  about 
it,  and  so,  by  analogy,  we  would  immediately  be  led 
to  suppose  that  in  contemplating  the  power  by  which 
we  perceived  the  load-stone,  I  would  rather  say  the  act 
of  the  mind  in  perceiving  the  load-stone,  we  are  unable 
to  grasp  all  the  properties  that  appertain  to  that  act. 
By  consciousness  we  know  there  was  a  battle  at 
Bunker's  Hill ;  perhaps  we  know  the  number  of  killed 
and  wounded,  yet  ten  thousand  little  circumstances  of 
valor  and  distress,  which  we  have  every  reason  to 
believe  happened  to  individuals  in  that  battle  are 
known  nothing  of.  I  say  by  analogy  we  would  be 
led  to  suppose  that  many  things  appertaining  to  the 
operations  of  the  mind  wholly  escape  our  observation 
or  elude  the  grasp  of  consciousness.  But  I  think  that 


ESSAYS   AND    HISTORICAL   NOTES.  317 

we  have  more  than  analogy  to  support  this.  When 
I  have  stood  on  a  mountain  and  witnessed  the  setting 
of  a  calm  summer's  sun — the  waters  irradiating  differ- 
ent parts  of  the  wide  landscape,  and  the  fields,  some 
yellow,  some  green,  some  brown,  checkering  the  view 
like  a  rich  carpet  of  nature  ;  the  gently  nodding  trees, 
the  songs  of  evening  birds,  the  lowing  of  cattle  in  the 
distance,  and  the  bleating  of  flocks,  all  conspiring  to 
enchantment,  my  emotions  for  a  brief  hour  have  been 
indescribable,  and,  in  any  other  circumstances,  incon- 
ceivable. My  spirit  so  rapt,  my  enjoyment  so  exquisite, 
my  thoughts  so  sublimated,  that  I  would  give  myself 
up  to  the  torrent  flow  of  those  intoxicating  ideas.  At 
such  times  I  am  sure  that  I  have  passed  many  min- 
utes without  a  thought  of  watching  the  operations  of 
my  mind  or  emotions— my  mind  ?  That  was  quite 
absorbed  in  drinking  delight  from  the  exhilarating 
draught,  and  after  the  spell  had  passed  away,  I  had 
but  a  faint  idea,  an  indistinct  recollection  of  the 
enchanting  dream.  I  did  not  make  the  attempt  to 
grasp  the  feelings  of  my  mind,  or  to  watch  them  by 
the  power  of  consciousness.  I  had  no  time  to  watch 
the  workings  of  my  mind.  So  completely  absorbed 
was  I  in  feeling  the  enjoyment  of  the  scene,  that  I  had 
no  opportunity  of  watching  that  feeling.  I  afterwards 
knew  in  general,  that  I  had  felt,  and  that  I  had  felt 
indescribable— nay— almost  inconceivable  sensations. 
But  to  endeavor,  then,  to  get  up  such  a  conception  of 
those  sensations  from  the  scattered  fragments  of  con- 
sciousness which  I  did  exercise  at  the  time,  would 
have  been  as  vain  as  an  attempt  to  cut  a  robe 
'from 'the  sky  and  trim  it  with  the  rainbow.  And 
yet,  in  the  case  both  of  perceiving  the  load-stone 


318  MISCELLANEOUS   WRITINGS. 

and  of  feeling  the  delights  of  the  evening  scenery, 
every  modification,  quality  and  property  of  such 
perception  and  of  such  feeling;  in  short,  every 
mental  circumstance  by  which  they  were  attended, 
was  an  idea  of  the  mind,  however  many  of  them  may 
have  escaped  the  notice  of  consciousness,  and  many  of 
them,  in  my  opinion,  did  so  escape.  If  so,  then  we  cer- 
tainly have  ideas  which  do  not  owe  their  origin  imme- 
diately to  perception  or  consciousness.  As  there  are 
many  external  objects  which  we  do  not  perceive,  so 
there  are  many  internal  workings  of  the  mind  of 
which  we  may  not  be  conscious.  If  we  say  that  we  have 
no  ideas  except  what  we  perceive,  or  are  conscious  of, 
we  make  the  perception  or  consciousness  of  our  idea 
necessary  to  its  existence,  which  I  do  not  believe. 


UPHAM  ON  THE  MIND  AND  ITS  DISORDERS . 

Professor  Upham,  in  his  treatise  on  "  Imperfect  and 
Disordered  Mental  Action,"  arranges  his  subject 
according  to  the  analysis  of  the  mind  in  its  natural 
state  and  operations — considering,  in  order,  the  imper- 
fections and  diseases  which  affect  each  faculty. 

His  classification  of  mental  operations  coincides  in 
the  main,  with  the  old  division  of  the  mental  capaci- 
ties, into  the  understanding,  the  affections  and  the 
will.  The  nomenclature  which  he  adopts  is  intellect, 
sensibilities  and  will.  The  intellect  he  subdivides  into 
exterior  and  interior,  corresponding,  in  most  respects, 
with  Locke's  division  into  sensation  and  reflection. 
The  exterior  intellect  derives  knowledge  from  the  out- 
ward world  through  the  medium  of  the  senses ;  the 
interior  derives  it  from  a  consciousness  of  the  mind's 
own  operations,  from  original  suggestion,  relative 


ESSAYS  AND  HISTORICAL   NOTES.  319 

suggestion  or  judgment,  and  reasoning.  To  original 
suggestion,  he  assigns  the  origin  of  our  notions  of 
time,  number,  motion,  memory,  sameness,  personal 
identity,  present  existence,  etc.,  which  Stewart,  after 
Dr.  Reid,  attributes  to  common  sense. 

Now,  it  seems  to  me  that  a  more  simple  analysis 
may  be  made  of  the  operations  of  the  mind.  I  find  no 
fault  with  the  general  division  into  understanding, 
affections  and  will.  The  mental  operations,  or  states 
indicated  by  these  three  designations,  are  entirely  dis- 
tinct in  their  nature,  and  seem  to  comprehend  all  of 
which  the  human  mind  is  capable.  We  perceive  things, 
facts,  truths.  This  is  the  operation  of  the  understand- 
ing; and  is  a  matter  of  pure  intellection.  We  can 
conceive  of  beings  purely  intellectual,  who  might  be 
endowed  with  this  capacity,  without  being  subject  to 
any  emotions  or  affections.  But  we  are  differently 
constituted.  We  are  also  affected  by  our  perceptions. 
Hence  the  affections  or  sensibilities,  which  form  a  dis- 
tinct and  component  part  of  our  mental  structure. 
The  understanding  and  the  affections  constitute  us 
perceptive  and  passive  or  affective  beings.  We  are 
thus  rendered  capable  of  knowledge  and  emotion.  But 
our  nature  does  not  end  here.  We  are  not  only  per- 
ceptive and  passive,  but  active.  We  are  capable  not 
only  of  knowledge  and  emotion,  but  of  volition.  We 
not  only  understand  and  feel,  but  we  will.  Hence  the 
third  and  last  great  division  of  mental  operations— 
the  will. 

When  we  come  to  subdivide  the  operations  of  the 
understanding,  it  seems  to  me  that  the  perception  of 
the  ideas  of  time,  space,  number,  motion,  etc.,  belongs 
to  precisely  the  same  category  as  the  perception  of 
outward  objects  does.  It  is  true  we  do  not  perceive 


320  MISCELLANEOUS   WRITINGS. 

these  things  immediately  by  one  of  the  five  external 
senses,  but  there  is  a  sixth  sense  by  which  we  do  per- 
ceive them.  They  belong  to  the  framework  and  con- 
stitution of  this  outward  world  into  which  our  Maker 
has  placed  us,  and  I  consider  the  formation  in  the  mind 
of  a  comprehension  of  this  outer  world  and  the  things 
therein  contained,  of  its  constitution,  its  manner  of 
existence,  as  a  source  of  knowledge,  homogeneous 
in  its  character,  and  appreciable  by  a  department 
of  the  understanding  which  is  one  and  indivisible. 
Call  this  the  exterior  intellect  if  you  will.  Names  are 
not  things,  but  I  think  the  understanding  is  a  better 
word  to  denote  the  power  or  capacity  of  the  mind  to 
comprehend  the  world  as  it  is,  nature,  or  the  exterior 
universe,  than  any  other  that  can  be  chosen. 

There  is  an  exterior  or  more  transcendental  intel- 
lect, I  admit,  which  is  cognizant  of  ideas  that  the 
senses  do  not  reveal,  and  that  the  outer  world  does 
not  even  suggest.  Those  ideas  are  the  spiritual  ones 
on  which  our  moral  nature  depends— such  as  justice, 
purity,  faith,  sincerity,  generosity,  or,  perhaps,  personal 
identity,  present  existence,  etc.,  belong  to  this  class. 
(Memo.— Think  further  on  this  subject.) 
I  think  Prof.  Upham's  arrangement  of  the  subject 
of  mental  disorder  very  philosophical  and  correct. 
Disorder  is  the  correlative  of  order  in  all  departments 
of  nature  and  life.  The  physician  considers  the  human 
system  under  three  aspects— that  of  physiology,  path- 
ology and  therapeutics.  The  lawyer  divides  his  science 
into  rights,  wrongs  and  remedies.  The  divine  treats 
of  religion  under  the  heads  of  holiness,  sin  and  redemp- 
tion. In  like  manner,  the  true  division  of  mental 
philosophy  is  into  mental  physiology,  pathology  and 
treatment  of  the  insane,  etc.,  etc.,  etc. 


ESSAYS  AND   HISTORICAL  NOTES.  321 


THE  HUMAN  MIND. 

The  mind  of  man  may  be  compared  to  a  bird 
ascending  with  her  eye  fixed  upon  the  sun.  Her  light 
form  is  successively  borne  in  contrary  directions  by  the 
shifting  winds  as  she  passes  onward  and  upward 
through  the  various  strata  of  the  atmosphere.  So, 
the  mind,  as  it  rises  in  its  progress  toward  fixed  and 
eternal  truth,  the  centre  and  ultimate  object  of  all  its 
inquiries,  is,  at  first,  borne  along  with  the  various 
prejudices  and  opinions  of  the  world,  often  in  conflict 
with  each  other.  At  one  stage  of  its  progress,  it 
adopts  notions  and  views  that  are  often  modified  or 
entirely  changed  by  more  information,  or  an  acquaint- 
ance with  new  or  more  plausible  expositions,  and  it  is 
only  when  it  acquires  sufficient  strength  and  courage 
to  mount  above  the  floating  current  of  popular 
thoughts,  and  out  of  the  reach  of  the  breath  of  public 
opinion,  that  it  can  pursue,  with  eagle  speed  and 
unflinching  eye,  that  straight  and  luminous  path  which 
leads  to  the  pure  and  immutable  sources  of  intellectual 
and  moral  perfection. 

The  general  influence  which  the  several  sciences 
naturally  exert  upon  each  other,  is  a  truth  too  com- 
monly known  to  merit  a  remark  here.  But  some  of 
the  particular  instances  of  this  influence  are  striking 
and  worthy  of  a  passing  notice.  I  was  lately  forcibly 
struck  with  the  influence  of  the  discovery  of  the  art  of 
making  paper  in  the  eleventh  century,  and  the  art  of 
painting  in  the  fifteenth  century,  on  all  the  departments 
of  literature  and  science.  There  had  been  giant  minds 
in  the  darkest  ages,  but  their  wisdom  could  never  be 


322  MISCELLANEOUS   WRITINGS. 

recorded — perhaps  they  themselves  "were  ignorant  of 
letters,  and  so  all  died  with  them  that  might  have 
benefited  and  enlightened  the  world. 

May  we  not  also  compare  a  man's  individual  mind 
to  the  literary  and  scientific  mind.  A  man  may  be 
possessed  of  a  large  and  capacious  mind,  may  start 
many  brilliant  thoughts,  and  give  great  promise  of 
becoming  useful  and  great,  but  if  he  suffers  his  mind 
to  rest  on  its  own  extemporaneous  energies— never 
exerting  himself  to  store  his  memory  with  formulas  of 
truth— that  man  will  be  like  the  dark  ages.  His  start- 
ling thoughts  will  be  lost  in  the  flux  of  events — he 
makes  no  progress  in  the  net  amount  of  knowledge  at 
his  command,  but  as  fast  as  he  receives  knowledge,  he 
negligently  permits  it  to  pass  out  of  his  mind.  This,  I 
fear,  is  in  some  measure  the  case  with . 

September  9,  1837. 


THE  ENGLISH  GUTTURAL  U,  AS  HEARD  IN 
BUT,  HUT. 

To  show  the  proclivity  of  English-speaking  people 
to  drop  into  this  guttural,  the  following  sentence  will 
show  every  vowel  pronounced  in  that  way  : 

"  The  Editor  will  insert  the  burning  of  the  Martyrs 
in  his  next  circular." 

Here  we  have  ar  er  ir  or  ur  and  yr,  all  pronounced 
in  the  same  way ;  and  indeed,  it  is  almost  impossible 
for  an  English  speaker  to  pronounce  er  or  ir  otherwise 
than  if  spelled  ur.  And  yet  we  have  great  difficulty 
in  learning  to  pronounce  the  German  6,  as  in  Goethe, 
although  it  has  nearly  the  same  sound  as  the  English 


ESSAYS   AND    HISTORICAL   NOTES.  323 

short  u,  though  more  prolonged.  One  not  accustomed 
to  German,  would  come  very  near  to  the  true  pro- 
nunciation of  6  in  Gcethe,  if  he  should  pronounce  it  as 
though  it  were  spelled  Gurty,  leaving  out  the  sound  of 
r.  The  difficulty  is  in  prolonging  the  sound  suffi- 
ciently to  give  it  the  true  German  effect.  With  us  the 
sound  is  always,  or  generally,  short.  We  give  it 
greater  length  in  hurt  and  worth  than  we  do  in  put 
and  but.  Accustoming  ourselves  to  uttering  the  long 
sound  without  pronouncing  the  r,  we  could  soon  very 
nearly  acquire  the  German  6. 
December,  1880. 


ER,  BY,  NEAH. 

Er  and  Ere  is  the  Saxon  termination  from  wer, 
were,  a  man,  equivalent  to  the  German  pronoun  er,  he. 
As  a  termination,  it  signifies  an  agent,  or  actor.  Thus, 
bake,  baker  ;  dig,  digger ;  sing,  singer ;  train,  trainer, 
etc.,  meaning  respectively  a  man  who  bakes,  digs, 
sings,  trains,  etc.,  as  much  as  to  say,  bake-man,  dig- 
man,  sing-man,  train-man,  etc.  We  naturally  and 
almost  unconsciously  add  this  termination  when  we 
wish  to  express  the  actor  who  does  anything ;  thus, 
we  naturally  say  dynamiter,  photographer,  when  we 
wish  to  denote  a  person  who  uses  the  new  substance 
dynamite,  or  who  performs  the  new  process  of  photo- 
graphing. 

By,  Bye,  is  the  Danish  for  town,  village,  etc.  Hence 
in  that  part  of  England  where  the  Danes  settled,  we 
find  plenty  of  towns  ending  with  that  termination,  as 
Wetherby,  Thirkleby,  Selby ;  in  Yorkshire,  Derby, 
Denby ;  in  Derbyshire,  and  perhaps  a  hundred  places 


324  MISCELLANEOUS    WRITINGS. 

in  Lincolnshire,  the  local  map  being  filled  with  them. 
It  may  come  from  Bya,  Byan,  to  inhabit,  or  from  Bi, 
near,  in  the  vicinity  of.  For,  as  the  people  lived'  in 
towns,  or  vills,  those  who  were  collected  together,  Bi 
each  other,  always  made  a  vill. 

Neah,  Anglo-Saxon  for  near.     Neah-bi-er  would  be 
the  near-by-man,  hence,  our  word,  "neighbor." 


FREEDOM  OF  THOUGHT. 

La  scientific  and  historical,  especially  archaeological 
investigations,  the  mind  should  be  free  from  all  bias 
and  open  to  the  reception  of  truth  and  the  exact 
result  of  the  evidence  presented,  no  matter  what  idols 
are  overthrown  by  it.  "  Bacon,"  in  his  Novum 
Organum  (B.  L.  XXXIX-XLIV),  says  there  are  four 
species  of  idols  which  beset  the  human  mind— Idols  of 
the  tribe,  Idols  of  the  Den,  Idols  of  the  Market  and 
Idols  of  the  Theatre.  1.  Idols  of  the  Tribe  are 
inherent  in  human  nature,  and  the  very  tribe  or  race 
of  man — the  tendency  to  look  at  all  things  from  the 
central  stand  point  of  self  and  the  senses.  2.  Idols 
of  the  Den  are  the  peculiar  mental  obliquities  of  the 
individual,  arising  from  his  disposition,  education  and 
circumstances.  3.  Idols  of  the  Market  are  those 
erroneous  impressions  derived  from  intercourse  with 
other  men,  from  the  loose  conceptions  attached  to 
words  and  common  speech.  4.  Idols  of  the  Theatre 
are  the  dogmas  and  theories  of  sects  and  parties  in 
religion  and  philosophy  which  attract  us,  or  fetter  the 
operations  of  our  minds.  The  influence  of  these  Idols 
constantly  operates  to  cloud  the  understanding  and  to 


ESSAYS   AND   HISTORICAL  NOTES.  325 

shut  out  the  rays  of  truth.  If  the  remains  of  a  human 
being  are  found  in  a  geological  stratum,  or  locality 
which  indicates  the  lapse  of  many  ages  since  that 
being  lived,  and  if  those  remains  show  a  low  type, 
pointing  to  a  great  intermediate  development  of  the 
race,  the  whole  religious  world,  frightened  at  the  bear- 
ing the  discovery  may  have  on  the  accuracy  of  the 
book  of  Genesis,  bears  down  upon  the  obvious  deduc- 
tions of  the  evidence,  with  indiscriminate  and  blind 
denunciation.  But  the  man  of  true  scientific  instincts 
will  regard  this  commotion  with  contempt,  and  will  give 
full  play  to  his  reason,  and  accept  the  teachings  which 
the  dicovery  suggest.  He  will  not  shut  his  eyes  to  the 
evident  facts,  but  will  regard  them  with  fairness  and 
candor,  as  if  the  book  of  Genesis  had  never  been  written. 
This  freedom  of  thought  is  repulsive  to  ninety-nine 
hundredths  of  men,  because  it  sets  at  naught  their 
cherished  opinions,  prejudices  or  dogmas. 

Freedom  of  thought  was  the  great  object  for  which 
Spinoza  contended,  and  many  other  great  men. 


ASTRONOMICAL, 
SCIENTIFIC 

AND 

MATHEMATICAL. 


tLETTER  OF  HON.  JOSEPH  P.  BRADLEY, 

ONE  OF  THE  JUSTICES  OF  THE   SUPREME   COURT  OF  THE 

UNITED  STATES,  GIVING  A   HISTORY  OF  THE   FIRST 

STEAM  ENGINE  INTRODUCED  INTO  THE 

UNITED  STATES  OF  AMERICA. 


WASHINGTON,  September  20th,  1875. 

DAYID  M.  MEEKER,  Esq. 

DEAR  SIR  :  The  steam  engine  of  which  you  possess 
a  relic*  was,  as  you  suppose,  the  first  ever  erected  on 
this  continent.  It  was  imported  from  England  in  the 
year  1753,  by  Col.  John  Schuyler,  for  the  purpose  of 
pumping  water  from  his  copper  mine  opposite  Belle- 
ville, near  Newark,  New  Jersey.  The  mine  was  rich  in 
ore,  but  had  been  •worked  as  deep  as  hand  and  horse 
power  could  clear  it  of  water.  Col.  Schuyler,  having 
heard  of  the  success  with  which  steam  engines  (then 
called  fire  engines)  were  used  in  the  mines  of  Cornwall, 
determined  to  have  one  in  his  mine.  He  accordingly 
requested  his  London  correspondents  to  procure  an 
engine,  and  to  send  out  with  it  an  engineer  capable  of 
putting  it  up  and  in  operation.  This  was  done  in  the 
year  named,  and  Josiah  Hornblower,  a  young  man, 
then  in  his  twenty-fifth  year,  was  sent  out  to  superin- 
tend it.  The  voyage  was  a  long  and  perilous  one. 
Mr.  Hornblower  expected  to  return  as  soon  as  the 
engine  was  in  successful  operation.  But  the  proprietor 
induced  him  to  remain,  and  in  the  course  of  a  couple 

t  An  enlarged  photograph  of  this  letter  exhibited  at  the  Centennial 
Exposition  at  Philadelphia  in  1876,  is  now  deposited  with  the  New  Jersey 
Historical  Society  in  Newark,  N.  J. 

*  Deposited  in  the  "  National  Museum,"  Washington,  D.  C. 


330  MISCELLANEOUS   WRITINGS. 

of  years  he  married  Miss  Kingsland,  whose  father 
owned  a  large  plantation  adjoining  that  of  Col. 
Schuyler.  The  late  Chief  Justice  Hornblower  was  the 
youngest  of  a  large  family  of  children  which  resulted 
from  this  marriage.  Mr.  Hornblower's  father,  whose 
name  was  Joseph,  had  been  engaged  in  the  business  of 
constructing  engines  in  Cornwall  from  their  first  intro- 
duction in  the  mines  there,  about  1740  ;  and  had  been 
an  engineer  and  engine  builder  from  the  first  use  of 
steam  engines  in  the  arts,  about  1720.  The  engines 
constructed  by  him  and  his  sons  were  the  kind  known 
as  Newcomen's  engines,  or  Cornish  engines.  That 
brought  to  America  by  Josiah  was  of  this  description. 
Watt  had  not  then  invented  his  separate  condenser, 
nor  the  use  of  high  pressure.  But  it  is  generally  con- 
ceded that,  for  pumping  purposes,  the  Cornish  engine 
has  still  no  superior. 

After  1760  the  Schuyler  mine  was  worked  for  sev- 
eral years  by  Mr.  Hornblower  himself.  The  approach  of 
the  war,  in  1775,  caused  the  operations  to  cease.  Work 
was  resumed,  however,  in  1792,  and  was  carried  on 
for  several  years  by  successive  parties.  It  finally 
ceased  altogether  early  in  this  century,  and  the  old 
engine  was  broken  up  and  the  materials  disposed  of. 
The  boiler,  a  large  copper  cylinder,  standing  upright, 
eight  or  ten  feet  high,  and  as  much  in  diameter,  with 
a  flat  bottom  and  a  dome-shaped  top,  was  carried  to 
Philadelphia.  The  relic  in  your  possession  was  a  por- 
tion of  the  cylinder,  and  was  purchased  by  some  per- 
son in  Newark. 

In  1864,  I  met  an  old  man  named  John  Van 
Emburgh,  then  a  hundred  years  old,  who  had  worked  on 
the  engine  when  it  was  in  operation  in  1792.  He 
described  it  very  minutely  and,  I  doubt  not,  accurately. 


SCIENTIFIC,  "STUDIES,"  LETTERS,  ETC.        331 

It  is  from  his  description  that  I  happened  to  know  the 
kind  of  engine  it  was  ;  although  from  the  date  of  its 
construction,  and  the  use  to  which  it  was  put,  there 
could  have  been  but  little  doubt  on  the  subject. 

What  changes  have  been  wrought  in  one  hundred 
and  twenty-two  years  !  What  mighty  power  has  been 
created  on  this  continent,  in  that  time,  by  the  multi- 
plication and  improvement  of  the  steam  engine  !  We 
may  well  look  upon  this  relic  with  a  sort  of  supersti- 
tious veneration,  and  looking  forward  as  well  as  back- 
ward, wonder  what  another  century  will  bring  forth. 
Respectfully,  your  obedient  servant, 

(Signed)        JOSEPH  P.  BRADLEY. 


EASTER  DAY  AND  COURT  TERMS. 

Easter  Day  is  the  first  Sunday  after  the  first  full 
moon  that  happens  after  or  upon  the  21st  day  of 
March,  vernal  equinox.  Easter  Day  cannot  possibly 
happen  earlier  than  the  22d  of  March,  nor  later  than 
the  26th  of  April. 

Lent  is  a  solemn  fast  of  the  English  and  Roman 
churches,  called  Lent  because  it  is  in  the  spring,  that 
being  the  Saxon  name  for  spring.  It  is  composed  of 
forty  week  days,  immediately  preceding  caster,  Sundays 
not  being  reckoned  fast  days  because  they  are  com- 
memorative of  our  Saviour's  resurrection.  Hence 
Lent  begins  on  Wednesday,  six  whole  weeks  and  four 
days  before  Easter.  This  is  called  Ash  Wednesday. 
On  that  day  they  formerly  wore  sack-cloth  and  ashes, 
hence  its  name.  It  can  never  happen  earlier  than  the 
4th  day  of  February,  nor  later  than  the  llth  of 
March.  The  first  Sunday  before  Lent,  being  the  seventh 


332  MISCELLANEOUS   WRITINGS. 

before  Easter,  is  called  Quinguagesima,  being  the 
fiftieth  day  before  Easter  inclusive.  The  Sabbath 
preceding  that  is  called  Sexagesima,  and  the  preceding 
one,  Septuagesima. 

The  fortieth  day  after  Easter  inclusive  is  called  Ascen- 
sion Day,  coming  always  on  Thursday.  The  fiftieth  day 
inclusive — the  old  Pentecost— is  called  Whit  Sunday,  or 
White  Sunday,  because  catechumens  on  the  eve  of 
that  day  were  admitted  to  the  Sacrament  of  Baptism 
clothed  in  white  robes.  The  Sunday  after  White  Sun- 
day, being  eight  weeks  after  Easter,  is  Trinity  Sunday, 
which  can  never  happen  earlier  than  the  17th  of  May, 
or  later  than  the  21st  of  June. 

Now,  the  Easter  Term  always  commences  on 
the  Wednesday  fortnight  after  Easter  (which  is  never 
earlier  than  the  8th  of  April,  nor  later  than  the  13th 
of  May),  and  continues  till  the  Monday  three  weeks 
after  beginning  (which  is  never  earlier  than  4th  May, 
nor  later  than  8th  June),  being  in  all  twenty-seven 
days,  Sundays  included,  or  twenty-three  days  besides 
the  Sundays. 

The  Trinity  Term  always  commences  on  the  Friday 
after  Trinity  Sunday  (which  cannot  be  earlier  than 
22d  May,  nor  later  than  26th  June),  and  continues 
till  Wednesday  fortnight  after  it  begins  (which  is  never 
earlier  then  10th  June,  nor  later  than  15th  July), 
being  in  all  twenty  days,  Sundays  included,  or  seven- 
teen days  besides  the  Sundays. 

The  Michaelmas  Term  always  commences  on  the 
6th  of  November  and  continues  to  the  28th  of  that 
month,  being  in  all  twenty-three  days. 

The  Hilary  Term  always  commences  on  the  23d  of 
January  and  continues  to  the  12th  of  February,  being 
in  all  twenty-one  days. 


SCIENTIFIC    "STUDIES,"  LETTERS,  ETC. 


333 


PERPETUAL  CALENDAR 

FOR   FINDING   THE   DAY   OF  THE   WEEK   ON  WHICH   ANY 

DAY  OF  ANY  MONTH   FALLS  IN  ANY  YEAR  BEFORE 

OR   AFTER   CHRIST,  OLD   STYLE   OR  NEW. 


Feb 

Jan 

Apr 

Sep 

Mar 

Oct 

July 

Dec 

Jun 

Nov 

A«g 

May 

Centuries—  Old 
Style  or  Julian. 

1 

2 

3 

4 

5 

6 

7 

Centuries— 
New  Style. 

8 
15 

9 

16 

10 
17 

11 

18 

12 
19 

13 
2O 

14 
21 

22 

23 

24 

25 

26 

27 

28 

B.C 

A.  D. 

29 

30 

31 

A. 

D. 

7 

1 

8 

15 

Sat 

Sun 

Mo 

Tue 

Wed 

Thu 

Fri 

18 

22 

26 

6 

2 

9 

16 

Fri 

Sat 

Sun 

Mo 

Tue 

Wed 

Thu 

5 

3 

10 

17 

Thu 

Fri 

Sat 

Sun 

Mo 

Tue 

Wed 

19 

23 

27 

4 

4 

11 

18 

Wed 

Thu 

Fri 

Sat 

Sun 

Mo 

Tue 

3 

5 

12 

19 

Tue 

Wed 

Thu 

Fri 

Sat 

Sun 

Mo 

16 

20 

24 

28 

2 

6 

13 

20 

Mo 

Tue 

Wed 

Thu 

Fri 

Sat 

Sun 

17 

21 

25 

29 

1 

7 

14 

21 

Sun 

Mo 

Tue 

Wed 

Thu 

Fri 

Sat 

f 

1 

2 

3 

4 

4 

5 

6 

7 

8 

g 

g 

10 

11 

12 

EXPLANATION  OP 

12 

13 

14 

15 

16 

16 

17 

THE  CALENDAR. 

Years  of  the 
Century. 

18 
24 

19 
24 

2O 
25 

20 

26 

21 
27 

22 

28 

23 

28 

The   days    of  the 
different  months,  as 
given  above,  fall,  in 

29 

30 

31 

32 

32 

33 

34 

any 

year 

.    on 

the 

N.  B.—  Leap 

35 
40 

36 

41 

36 

42 

37 
43 

38 

44 

39 
44 

40 
45 

week-day  found  op- 
posite   the  century 
iOld  or  New  Style) 

year 

9     b 

:inar 

in- 

46 

47 

48 

48 

49 

50 

51 

in   \v 

hich 

the 

year 

serted  twice,   thes 
first     number     is 
used     when      the 

52 
57 

52 

58 

53 

59 

54 
60 

55 
60 

56 
61 

56 

62 

occurs,      and     over 
the     year     thereof. 
The    line    of  week- 

givei 

i    da 

te  is 

in 

63 

64 

64 

65 

66 

67 

68 

days 

in  <« 

•hich 

that 

January   or    Feb- 
ruary; the  second 
for      the       other 

68 

74 

69 
75 

70 
76 

71 
76 

72 

77 

72 

78 

73 

79 

day 
any 
the 

is  found  under 
month    (-with 
month-day 

mon 

ths. 

80 

80 

81 

82 

83 

84 

84 

num 

3ers 

ab 

ove) 

85 
91 

86 
92 

87 
92 

88 
93 

88 
94 

89 
95 

90 
96 

forms     the      entire 
Calendar  for   that 
month  and  year. 

I 

96 

97 

98 

99 

100 

100 

EXAMPLE  1.  To  find  the  day  of  the  week  for  July  4th,  1881.  Opposite 
Century  19,  New  Style,  and  over  year  81,  is  Saturday.  Therefore,  July  2d 
is  Saturday ;  and  the  line  of  week-days  in  which  Saturday  falls  under  July 
(which  is  the  second  line),  with  the  days  of  the  month  above,  constitutes 
the  entire  Calendar  for  July,  1881,  according  to  which  the  4th  falls  on 
Monday. 

EXAMPLE  2.  To  find  the  day  of  the  week  on  which  Columbus  discov- 
ered America,  October  12,  1492,  Old  Style.  Opposite  Century  15,  Old  Style, 
and  over  92  in  black  letter  (it  being  leap  year),  is  Monday.  Therefore, 
October  8th  was  Monday;  and  the  line  of  week-days  in  which  Monday 
falls  under  Mondays  (which  is  the  sixth),  with  the  days  of  the  month 
above,  constitutes  the  entire  Calendar  for  October,  1492,  Old  Style,  and 
the  12th,  as  seen  falls  on  Friday. 

Copyright,  1875,  by  Jos.  P.  Bradley 


334 


MISCELLANEOUS   WRITINGS. 


TABLE 

FOR  FINDING  MEAN  TIME  OF  NEW  MOON  FOR  ANY  MONTH 
AND  YEAR  IN  A  PERIOD  OF  THIRTY  CENTURIES. 


B.  C 

i). 

H. 

M. 

Moon's    retarda- 





Years  of  each  century 

Moon's 

tion   In    each 

800 
700 

7 
12 

18 
2 

81 

55 

arranged  in  Metonic 
Cycles    of  19   years 
each. 

advance  in 
each  year. 

month,  except 
March,  in  which 
it  advances. 

60O 

16 

11 

19 

500 

20 

19 

42 

400 

25 

4 

4 

300 

29 

12 

2G 

I- 

n. 

III. 

IT. 

T. 

VI. 

D. 

B. 

JC. 

D. 

B. 

M. 

200 

4 

8 

3 

1 

20 

39 

68 

77 

9G 

0 

0 

0 

Jan. 

o 

0 

O 

10O 

8 

16 

23 

2 

21 

40 

69 

78 

97 

18 

21 

33 

Feb. 

1 

11 

16 

3 

22 

41 

GO 

79 

98 

8 

G 

21 

Mar. 

.J. 

*1 

28 

A.  D.     0.  S 

4 

23 

42 

61 

80 

99 

27 

8 

54 

Apr. 

1 

9 

48 

5 

24 

48 

G2 

81 

100 

15 

12 

42 

May 

1 

31 

4, 

1 

13 

O 

48 

G 

25 

44 

G3 

82 

4 

21 

31 

June 

8 

S' 

20 

101 

17 

9 

2 

7 

2G 

45 

64 

88 

23 

19 

4 

July 

8 

19 

36 

201 

21 

17 

21 

8 

37 

4G 

66 

84 

18 

3 

52 

Aug. 

5 

6 

52 

301 

26 

1 

38 

9 

28 

47 

66 

85 

i 

13 

41 

Sep. 

6 

18 

8 

401 

30 

9 

55 

10 

29 

48 

07 

8G 

20 

10 

13 

Oct. 

7 

6 

24 

501 

6 

6 

28 

11 

30 

49 

68 

87 

8 

19 

2 

Nov. 

8 

1G 

40 

601 

9 

13 

44 

12 

31 

50 

69 

88 

38 

16 

34 

Dec. 

9 

8 

55 

701 

13 

21 

r  <J 

18 

">  '> 

51 

TO 

89 

i  ~ 

- 

23 

801 
901 

18 
22 

6 

14 

13 

27 

14 
15 

33 
34 

52 
68 

71 

72 

90 
91 

8 
36 

10 

7 

12 
44 

In  Leap-year,  re- 
tardation  1    day 

1001 

26 

22 

40 

1(5 

86 

54 

73 

92 

14 

16 

33 

more    after    Feb- 

1101 

1 

18 

8 

17 

86 

66 

74 

93 

8 

i 

21 

ruary. 

1201 
13O1 

6 
10 

3 

10 

20 
31 

1  s 
19 

38 

50 
57 

75 
7G 

94 
95 

11 

—  - 

7 

54- 

43 

N.  B.    Columns 

1401 
1501 
1601 

14 
19 
23 

18 
3 
1O 

51 
69 

CORRECTION. 

2,  3,  4   show  the 
first  New  M  oon  i  n 
the    century,     in 
January;   11,  12 

1701 

37 

19 

8 

H     M 

13  show  Moon's 

A.  D.     N.  8. 

Cycle  II.  Bissextile    .     .    .     +1631 
1,  2,  3  after  Bis.       —    7  29 

year;   15,  16,  17 
show  Moon's  re- 
tardation in  each 

1501 
1601 
1701 
1801 
1901 
2001 
2101 

29 
3 
9 
14 

19 
34 

20 

3 

22 
G 
14 
22 
G 
14 

51 
15 
24 
31 
38 
47 
54 

III.  Bis.  &  3  after  Bis.    +    92 
1,2  after  Bis.      .      —  14  58 
IV.  Bia.  &  2,  3  after  Bis.  +    134 
1  after  Bis.      .     .      —22   26 
V.  All  years     ...      —    5   55 
VI.  Bissextile    .     .     .      +  1O  36 
1,  2,  3  after  Bis.      —13   24 

month.       Correc- 
tions  for   irregu- 
larities of  Moon's 
motion  would  not 
vary  the  result  1  2 
hours  either  way. 
Time  :     Washing- 
ton— reckoned 
from  midnight. 

DIRECTIONS  —Add  together  time  of  Centurial  New  Moon  and  Moon's 
advance  for  the  year,  applying  correction ;  deduct  retardation  for  the 
month,  adding  a  lunation  (29d.  12h.  44m.)  if  necessary;  or  casting  out  a 
lunation  if  the  result  exceeds  the  number  of  days  in  the  month;  the  re- 
mainder will  be  the  time  of  mean  New  Moon  for  the  month  required. 
For  mean  Full  Moon,  add  or  subtract  half  a  lunation  (14d.  18h  22m.) 
EXAMPLE:  Required  mean  New  Moon  for  October,  1879.  Here,  Centurial 
New  Moon  for  1801  N.  S.  is  14d.  14h.  31m.;  Moon's  advance  for  79,  8d.  6h. 
21m.:  sum,  22d.  20h.  52m.  Correction  for  Cycle  V.,— 5h.  55m.;  remainder, 
22d.  14.  57m.  Retardation  for  October,  7d.  5h  24m.;  which  deducted, 
leaves  15d.  9h.  33m.  That  is,  Mean  New  Moon  October  15,  at  9h.  33m.A.M. 


SCIENTIFIC    "  STUDIES,"    LETTERS,    ETC.  335 

THE  NEW  CALENDAR  PROPOSED. 

[From  The  Nation  of  April  29,  1875.] 

The  National  Academy  of  Sciences  has  just  con- 
cluded its  April  meeting  in  Washington,  which  was 
held  at  the  Smithsonian  Institution,  under  the  presi- 
dency of  Professor  Henry.  The  attendance  was  not 
large,  either  of  members  or  of  the  public,  but  a  respect- 
able number  of  papers  were  read,  of  which  a  very  full 
report  has  been  given  by  the  Tribune.  Of  the  more 
strictly  scientific  papers  that  of  Professor  Loomis  of 
Yale  College  on  the  results  to  be  reached  from  a  dis- 
cussion of  the  signal  service  maps,  and  Professor 
Langley's  account  of  Solar  phenomena  observed  at 
Allegheny  Observatory,  were  of  most  general  interest 
whilst  President  Barnard's  Report  for  the  Committee 
on  Weights,  Measures  and  Coinage,  and  Mr.  Justice 
Bradley 's  (of  the  Supreme  Court)  proposal  for  a 
reform  of  the  Gregorian  Calendar,  referred  most 
directly  to  practical  questions.  The  reform  of  the 
calendar  has  been  somewhat  fully  discussed  lately,  and 
a  bill  setting  forth  that  "  the  Gregorian  year  pays  no 
proper  respect  to  the  cardinal  points  in  the  earth's 
orbit,"  and  proposing  to  secure  such  respect,  was  laid 
before  the  House  of  Representatives  at  its  last  session. 
Mr.  Justice  Bradley 's  plan  proposes  to  fix  the  begin- 
ning of  the  year  at  the  winter  solstice  (December  21) 
and  to  divide  it  into  four  unequal  parts  of  90,  93,  93 
and  89  days.  In  leap  years  the  last  part  is  to  have 
90  days.  In  the  remarks  on  this  paper  a  much  better 
'plan  was  mentioned,  which  had  been  previously  dis- 
cussed by  the  Philosophical  Society  of  Washington. 
This  was  to  begin  the  year  with  21st  December,  and 


336  MISCELLANEOUS   WRITINGS. 

to  divide  it  into  six  parts  of  two  months  each,  each 
part  to  have  sixty-one  days  in  leap  years,  and  the  last 
part  to  have  but  sixty  days  in  common  years. 

The  scheme  would  be  somewhat  as  follows  for  a 
common  year  of  both  systems  : 

Jan.  Feb.  Mch.  Apl.  May  Jun.  July  Aug.  Sep.  Oct.  Nov.  Dec. 
Gregorian      31     28       31      30     31     30     31     31      30    31     30     31 
Ideal  31     30      31      30     31     30    31     30     30    31     30     30 

Thus,  only  February,  August  and  December  would 
be  altered  by  this  ingenious  plan,  which  is  due  to  Mr. 
E.  B.  Elliott,  the  statistician. 


[From  Tiic  Xution,  May  13,  1875]. 

An  esteemed  correspondent  writes  us  from  Wash- 
ington :  "In  noticing  Mr.  Justice  Bradley 's  proposed 
arrangement  of  the  calendar,  you  did  not  explain  the 
manner  in  which,  by  his  plan,  the  year  would  be 
divided  into  four  quarters  of  three  months  each, 
exactly  corresponding  with  the  four  natural  divisions 
of  the  year  made  by  the  sun's  arrival  at  the  two 
equinoxes  and  two  solstices.  Thus,  beginning  at  the 
winter  solstice,  when  the  sun  is  at  the  extreme  southerly 
point  reached  by  him,  where  he  commences  his  return 
to  the  north,  Judge  Bradley  would  place  the  new  year, 
or  January  1st,  on  the  present  21st  day  of  December. 
Then  giving  to  January,  February  and  March  each 
thirty  days,  the  1st  of  April,  or  beginning  of  the 
second  quarter,  will,  in  common  years,  fall  on  the  21st 
of  March,  and  in  leap  year,  on  the  20th  of  March,  or 
exactly  at  the  vernal  equinox,  when  the  sun  is  on  the 
equinoctial  line  and  the  days  and  nights  are  equal. 
Then,  giving  to  the  next  six  months,  each  thirty-one 


SCIENTIFIC    "STUDIES,"    LETTERS,    ETC.  337 

days,  the  1st  of  July,  or  the  beginning  of  the  third 
quarter  will  fall  in  common  years  on  the  present  22d 
of  June,  and  in  leap  years  on  the  21st,  which  is  the 
summer  solstice,  when  the  sun  is  at  his  farthest  point 
north,  and  the  days  are  longest ;  and  the  1st  of  Octo- 
ber, or  beginning  of  the  fourth  quarter,  will  fall  in 
common  years  on  the  23d  September,  and  in  leap 
years  on  the  22d,  which  is  the  autumnal  equinox, 
when  the  sun  recrosses  the  line  and  the  days  and 
nights  are  equal  again.  Then  giving  to  October  and 
November  each  thirty  days,  and  to  December  twenty- 
nine  in  common  years  and  thirty  in  leap  years,  the  1st 
of  January  will  again  fall  on  the  present  21st  of  Decem- 
ber in  all  cases.  This  allotment  of  days  to  each 
month  is  easy  to  remember ;  is  as  convenient  as 
any,  and  makes  them  correspond  to  the  great  natural 
phenomena  of  the  sun's  annual  circuit.  It  is  a  lesson 
in  astronomy  in  itself,  and  is  generally  approved  as  the 
best  plan  that  has  been  proposed.  The  placing  of  the 
intercalary  day  of  leap  year  at  the  end  of  the  year 
would  be  a  great  advantage  in  all  astronomical  calcu- 
lations and  arrangements  of  the  calendar.  And  the 
conformity  of  the  entire  civil  year  to  the  natural  year 
would,  of  course,  be  an  advantage  amply  sufficient  to 
compensate  for  any  temporary  inconvenience  arising 
from  the  change.  No  alteration  in  the  recurrence  of 
leap  years  from  the  arrangement  of  the  Gregorian 
Calendar  is  proposed.  That  is  sufficiently  accurate 
for  many  centuries  to  come.  The  law  prepared  by 
Judge  Bradley  to  effect  the  proposed  change,  and 
which  was  read  to  the  National  Academy  of  Science, 
is  extremely  simple  and  comprehensive,  and  would 
obviate  all  inconveniences  of  a  business  character  that 
could  possibly  arise. 


338  MISCELLANEOUS   WRITINGS. 

NEW  CALENDAR  PROPOSED. 

WASHINGTON,  April  17,  1875. 
J.  E.  HILLGARD,  Esq. 

DEAR  SIR  :  Allow  me  to  recur  to  the  subject  of  a 
natural  and  a  scientific  year.  This  year  ought  to 
correspond  with  the  natural  Solar  year.  In  the 
northern  hemisphere  the  natural  commencement  of  the 
year  is  at  the  time  of  the  sun's  station  in  the  winter 
solstice.  Then  he  commences  his  return  to  warm  and 
vivify  the  world  and  reclothe  it  with  vegetation. 
Every  rustic,  by  noting  the  sun  mark  in  his  doorway, 
can  tell  when  the  old  year  ends  and  the  new  begins. 

The  average  time  of  the  winter  solstice  is  December 
22d,  at  1  A.  M.  From  the  winter  solstice  to  the 
vernal  equinox  is  about  eighty-nine  days,  one  hour; 
from  thence  to  the  summer  solstice  is  about  ninety- 
three  days,  less  three  and  one-half  hours ;  thence  to 
the  autumnal  equiuox,  about  ninety-three  days,  four- 
teen and  three-quarter  hours;  thence  to  the  winter 
solstice  again,  about  ninety  days,  less  six  and  one-half 
hours. 

By  commencing  the  year  on  December  21st  and 
giving  to  the  winter  ninety  days,  spring  ninety-three, 
summer  ninety-three,  and  fall  eighty-nine  in  common 
years,  and  ninety  in  leap  years,  we  shall  have  for 
January,  February  and  March  thirty  days;  April, 
May  and  June  each  thirty-one  days  ;  July,  August  and 
September  each  thirty-one  days;  October,  November 
and  December  each  thirty  days,  in  leap  year— December 
one  less  other  years ;  and  the  seasons  will  commence 
very  nearly  at  the  equinoxes  and  solstices.  The  first 
days  of  January,  April,  July  and  October  would  then 


SCIENTIFIC    "  STUDIES,"    LETTERS,    ETC.  339 

fall,  according  to  the  present  calendar,  on  the  21st  of 
December,  the  21st  of  March,  22d  of  June  and  23d  of 
September.  The  cardinal  points  would  occur  on  these 
days  in  the  majority  of  cases. 

No  change  would  be  required  except  that  of 
advancing  the  year  eleven  days  and  placing  the  inter- 
calary day  of  leap  year  at  the  end  of  the  year.  Sup- 
posing the  change  to  be  made  in  December  of  this 
year,  1876,  the  year  1877  would  commence  December 
21  and  end  December  20,  and  contains  365  days; 
1878  ditto,  1879  ditto;  1880  would  commence 
December  21,  1879,  and  end  December  20,  1880,  and 
contain  366  days,  the  29th  February  making  the 
additional  day.  The  calendar  would  continue  to 
follow  the  Gregorian  style.  The  same  years  would  be 
leap  year  as  now. 

This  arrangement  would  correspond  with  nature 
and  would  be  attended  with  many  advantages.  The 
placing  the  intercalary  day  at  the  end  of  the  year 
would  be  worth  the  trouble. 

The  following  bill  would  effect  the  change  and 
obviate  all  civil  inconveniences  : 

BILL. 

A   BILL  TO   REFORM   THE   CIVIL   YEAR. 

1.  BE  IT  ENACTED,  that,  after  proclamation  shall 
be  made  as  hereinafter  provided,  the  civil  year  shall 
commence  with  the  21st  day  of  December,  according 
to  the  present  reckoning,  and  the  month  of  January 
shall  be  advanced  so  as  to  begin  with  that  day ;  and 
the  months  shall  follow  each  other  in  the  same  order 
as  heretofore,  and  shall  have  the  following  number  of 
days,  respectively,  to  wit:  January,  February  and 


340  MISCELLANEOUS   WRITINGS. 

March,  each  thirty ;  April,  May  and  June,  each  thirty- 
one  ;  July,  August  and  September,  each  thirty-one ; 
October  and  November,  each  thirty,  and  December 
thirty  in  leap  years  and  twenty-nine  in  common  years. 

2.  AND  BE  IT  ENACTED,  that  the  President  of  the 
United  States  be,  and  he  is  hereby  requested  to  instruct 
the  Ministers  and  other  representatives  of  the  Govern- 
ment of  the  United  States  in  foreign  countries  where 
the  Christian  year  is  used,  to  lay  before  the  respective 
governments  to  which  they  may  be  accredited  the  plan 
for  rearranging  the  civil  year,  as  presented  in  the  first 
section  of  this  act,  and  to  endeavor  to  procure  their 
co-operation  therein ;  and  as  soon  as,  in  the  judgment 
of  the  President,  a  sufficient  number  of  said  govern- 
ments shall  consent  to  join  in  such  new  arrangement, 
the   President  is  hereby  authorized  and   directed  by 
public  proclamation  to  declare  when  the  said  arrange- 
ment shall  commence ;  and  the  year  which  shall  pre- 
cede the  commencement   of  said  arrangement,   shall 
terminate  at  the  end  of  the  20th  day  of  December 
instead  of  the  31st  day  of  said  month,  and  the  next 
civil  year  shall  commence  on  the  next  following  day. 

3.  AND  BE  IT  ENACTED,  that  the  change  of  the 
civil  year,  herein  provided  for,  when  the  same  shall 
take  place,  shall  not  have  the  effect  of  shortening  or 
anticipating  any  period  of  time  provided  for  in  any 
contract,  or  the  period  of  arriving  at  any  year  of  age, 
or  the  period  provided  for  the  running  of  any  statute 
of  limitations,  or  for  the  publication  of  any  notice  or 
order,  or  for  the  doing  of  any  act,  matter  or  thing, 
except,  however,  and  it  is  provided,  that  in  all  cases 
where  nominal  days  of  any  months  or  year  are,  or 
shall  be  fixed,  prescribed  or  allotted  by  law,  custom, 


SCIENTIFIC  "STUDIES,"  LETTERS,  ETC.        341 

usage,  by-law  or  regulation  for  the  meetings  of  any 
public  or  private  bodies  whatever,  or  for  the  com- 
mencement of  the  terms  of  any  courts,  or  for  the 
commencement  or  termination  of  any  term  of  office, 
or  for  the  acts  of  any  officers  or  persons  whatever,  the 
said  meetings,  terms  and  acts  respectively,  shall  be 
held,  commenced,  terminated,  and  performed  respect- 
ively on  the  same  nominal  days  in  the  civil  month  or 
year  as  newly  arranged. 


A  LETTER  FROM  JUDGE  BRADLEY,  OF  THE 

SUPREME  COURT  OF  THE  UNITED  STATES 

TO  THE  SECRETARY  OF  THE 

TREASURY. 

WASHINGTON,  April  15,  1872. 
HON.  GEORGE  S.  BOUTWELL, 

Secretary  of  the  Treasury. 

SIR:  For  the  purpose  of  promoting  the  object 
of  a  large  number  of  engineers  and  others  inter- 
ested in  steam  transportation,  who  desire  that 
Congress  should  authorize  experiments  to  be  made  to 
ascertain,  with  greater  certainty,  the  cause  of  explo- 
sions and  the  best  means  of  preventing  them,  and  at 
the  instance  of  persons  speaking  in  their  behalf,  I  have 
taken  the  liberty  of  addressing  you  the  following 
letter.  I  hope  that  the  intrinsic  importance  of  the 
subject  will  be  my  excuse  for  troubling  you  with  its 
perusal. 

After  the  lapse  of  more  than  fifty  years,  the  subject 
of  explosions  of  steam  boilers  has  lost  none  of  its  interest 


342  MISCELLANEOUS  WRITINGS. 

or  importance.  They  recur,  as  frequently  as  ever,  and 
are  attended  with  frightful  results  to  persons  and 
property.  Legislation  has  hitherto  wholly  failed  to 
correct  the  evil.  The  cause  of  this  failure  has  been 
the  ignorance  which  has  existed  (and  which  still  exists) 
•with  regard  to  the  precise  causes  by  which  explosions 
are  produced.  The  want  of  proper  experiments  on 
real  boilers  has  left  the  matter  open  to  speculation ; 
and  the  result  is  a  wide  diversity  of  opinion  amongst 
even  skillful  engineers  as  to  the  true  causes  of  these 
disasters.  With  such  a  diversity  of  opinion,  it  is 
impossible  to  procure  verdicts  against  those  who  are 
really  guilty  of  negligence.  In  nearly  all  cases  that 
have  occurred  since  the  passage  of  the  first  law  in 
1838,  the  guilty  party  has  been  shielded  by  the  uncer- 
tainty and  doubt  that  has  prevailed  as  to  the  causes 
of  the  explosion.  The  notion  has  become  prevalent 
that  these  accidents  (as  they  are  called)  are  the  result 
of  some  mysterious  cause— the  production  of  an 
unknown  gas,  the  combination  of  electrical  and  chem- 
ical forces,  against  which  no  foresight  can  guard. 
Such  notions  have  a  tendency  to  stop  inquiry,  as  well 
as  to  relax  the  attention  and  watchfulness  of  engineers 
in  charge.  A  series  of  experiments,  conducted  on  a 
proper  scale,  and  in  a  proper  method,  would  undoubt- 
edly tend  to  dispel  such  illusions  and  to  reveal  the 
exact  causes  of  explosion,  against  which  it  is  necessary 
to  guard.  And  whatever  diversity  of  opinion  exists 
among  engineers  as  to  these  causes,  it  is  believed  that 
they  are  quite  unanimous  as  to  the  necessity  of  direct 
proof,  by  experiments  on  actual  boilers,  on  the  follow- 
ing points  :  first,  the  comparative  strength  of  old  and 
new  boilers,  of  boilers  differently  constructed,  and  of 


SCIENTIFIC  "STUDIES,"  LETTERS,  ETC.        343 

boilers  constructed  of  different  kinds  of  iron ;  and, 
secondly,  the  methods  of  relieving  them  of  too  great 
pressure. 

But  the  experiments  that  are  requisite  for  attain- 
ing these  ends  require  too  great  an  outlay  of  money 
to  be  maintained  at  private  expense.  They  need,  and 
should  have,  the  support  of  Government,  especially  as 
the  Government  attempts  (very  properly)  to  regulate 
the  subject. 

Experiments  on  the  causes  of  boiler  explosions 
were  made  about  thirty-five  years  ago  by  the  Franklin 
Institute  of  Philadelphia,  and  a  report  was  made  to 
the  Secretary  of  the  Treasury,  who  had  furnished  the 
funds.  These  experiments  were  made  by  a  very  able 
board,  of  which  Prof.  A.  D.  Bache  was  chairman.  The 
results  obtained  and  the  deductions  from  them  consti- 
tute nearly  all  that  is  now  known  on  the  subject  of 
explosions  and  of  the  means  of  preventing  them.  This 
report  has  been  published  all  over  Europe,  and  forms 
the  standard  of  reference.  (See  Report  E,  Doc.  162, 
1st  Sess.,  24th  Cong.)  But  these  experiments  were 
made  upon  model  boilers  of  small  dimensions,  for  the 
purpose  of  obtaining  theoretical  results  as  to  the 
behavior  of  the  structure  under  certain  pre-conceived 
conditions.  The  trial  of  real  boilers  and  the  careful 
examination  of  boilers  actually  burst,  and  especially 
the  reconstruction  and  testing  of  them  under  various 
conditions,  was  not  attempted. 

There  have  been  as  yet,  in  no  country,  any  serious 
attempts  made  by  trials  and  experiments  on  steam 
boilers  of  the  size  and  kind  generally  used,  to  find  the 
laws  governing  explosions ;  or  to  find  the  means  of 
preventing  them.  From  their  dangerous  nature,  such 


3-J4  MISCELLANEOUS    WRITINGS. 

experiments  cannot  be  made  upon  boilers  in  use ;  and 
the  examination  of  the  debris  of  an  explosion  generally 
adds  nothing  to  our  knowledge.  The  necessity  of 
such  experiments  has  been  acknowledged  in  all  coun- 
tries where  steam  is  employed ;  but  the  expense  and 
difficulty  of  making  them  on  actual  boilers  have  pre- 
vented their  being  made.  From  a  few  experiments 
made  at  Sandy  Hook  in  November  last,  upon  boilers 
of  different  ages,  in  the  presence  of  a  large  number  of 
engineers,  it  became  perfectly  apparent  that  much  is 
yet  to  be  learned  on  the  entire  subject,  and  that  intel- 
ligent and  efficient  legislation  cannot  be  devised  in 
reference  to  it  until  the  investigation  is  prosecuted 
much  farther  than  it  has  yet  been.  The  probability  is 
very  great  that,  contrary  to  opinions  frequently 
advanced,  there  are  no  forces  acting  in  the  explosions 
of  steam  boilers  but  such  as  can  be  controlled,  and 
that  in  every  instance,  by  proper  experimental  inquiry, 
the  true  cause  can  be  ascertained. 

The  principal  objects  of  a  proper  system  of  experi- 
ments would  be  the  following  : 

1.  To  detect  the  faults  in  the  ordinary  construction 
of  boilers. 

2.  To  adopt  more  perfect   means    of  preventing 
dangerous  pressure. 

3.  To  acquire  such  certainty  as  to  the  true  causes 
of  disasters  by  explosions  that  the  penal  laws  on  the 
subject  may  be  strictly  and  intelligently  enforced,  and 
that  thereby  owners,  constructors  and  those  having 
charge  of  boilers  may  be  more  careful  and  diligent  in 
the  performance  of  their  duties  to  the  public. 

In  view  of  these  considerations,  it  seems  to  me  that 
Congress  would  do  very  wisely  to  authorize  the  Gov- 


SCIENTIFIC    "  STUDIES,"    LETTERS,    ETC.  34-5 

ernment  to  have  a  series  of  experiments  made,  under 
the  charge  of  a  board  of  skillful  engineers,  for  the 
purpose  of  ascertaining  those  results,  which  the 
increased  facilities  of  the  engineering  art  would  now 
render  attainable. 

I  have  the  honor  to  forward  with  this  a  copy  of 
the  report  made  by  Chief  Engineer  Isherwood  and 
others  of  the  experiments  made  at  Sandy  Hook  in 
November  last,  to  which  allusion  has  been  made.  A 
more  full  report  by  Professor  Thurston,  illustrated  by 
drawings,  has  been  published  in  the  Franklin  Institute 
Journal. 

I  also  forward  the  draft  of  law,  or  joint  resolution, 
which  would  enable  the  President,  through  either  of 
the  executive  departments,  to  institute  the  experiments 
which  I  have  indicated. 

I  have  taken  an  interest  in  this  subject,  and  have 
presumed  to  address  you  upon  it,  under  the  belief  that 
the  experiments  proposed  would  have  more  effect  in 
producing  the  adoption  of  safeguards  against  the 
disasters  continually  occurring  from  boiler  explosions 
than  any  regulations  which  can  at  present  be  made. 
The  whole  steam  transportation  of  the  country  and 
of  the  world,  and,  indeed,  the  entire  commerce  of 
the  world,  is  deeply  interested  in  the  ascertainment  of 
the  precise  laws  and  exact  data  on  which  to  calculate 
and  provide  for  these  disasters. 

Respectfully,  your  obedient  servant, 

(Signed)        JOS.  P.  BRADLEY. 


346  MISCELLANEOUS   WRITINGS. 

AN  ACT  TO  AUTHORISE  INQUIRIES   INTO  THE 
CAUSES  OF  STEAM  BOILER  EXPLOSIONS. 

BE  IT  ENACTED,  etc. 

SECTION  1.  That  the  President  of  the  United 
States  be,  and  he  is  hereby,  authorized  to  cause  such 
experiments  to  be  made  and  such  information  to  be 
collected  as,  in  his  opinion,  may  be  useful  and  important 
to  guard  against  the  bursting  of  steam  boilers  ;  and 
that  he  be  required  to  communicate  the  same  to  Con- 
gress ;  and  that  the  sum  of  one  hundred  thousand 
dollars  be  appropriated  for  the  purpose  of  this  act. 


RECURRENCE    OF    ICE    PERIODS    IN    THE 
NORTHERN  HEMISPHERE. 

The  absolute  zero  of  temperature  is  —  459.13  Fahr- 
enheit, or  491.13  below  the  freezing  point.  This  fact 
is  deduced,  amongst  other  things,  from  the  law  of 
expansion  of  gases,  which  is  -^^  part  of  their 
volume  at  32°  Fahrenheit  for  each  additional  degree 
of  temperature.  Therefore  the  freezing  point,  or  32° 
Fahrenheit,  is  491.13°  above  absolute  zero.  Suppos- 
ing this  to  be  the  mean  temperature,  in  New  Jersey,  on 
the  first  of  January,  when  the  earth  is  now  in  its 
perihelion,  what  would  it  be  if  the  earth  were  in  its 
aphelion  instead  of  its  perihelion  on  the  first  of 
January  ?  This  would  depend  on  the  relative  distance 
of  the  earth  from  the  sun  at  its  perihelion  and 
aphelion,  and  would  be  inversely  as  the  squares  of 
those  relative  distances.  These  relative  distances  are, 


SCIENTIFIC    "  STUDIES,"   LETTERS,   ETC.  347 

for  perihelion  89,897,000  miles,  and  for  aphelion 
92,963,000  miles,  so  that  the  absolute  heat  derived 
from  the  sun  in  those  two  positions  would  be  as 
(92,963)'  to  (89,897)'.  Thus,  (92,963)'  (89,897)9; 
491.13°  :  459.27°,  showing  a  difference  of  31.86°. 

This  would  make  the  temperature  of  our  winters 
about  32°  less  than  at  present.  Ten  thousand  five 
hundred  years  ago  the  earth  was  in  aphelion  on  the 
1st  of  January. 


STANDARD  OF  WEIGHTS  AND  MEASURES. 

The  English  yard  is  the  standard  of  measure  in 
the  British  Empire  and  in  the  United  States.  The 
metre  is  the  standard  in  France  and  in  several  Euro- 
pean countries.  The  ratio  between  them  is  as  1  to 
1.093633  ;  or  as  36  inches  to  39.370791  inches.  The 
yard  is  the  more  convenient  of  the  two,  corresponding 
better  to  the  natural  pace,  and  to  the  height  and 
fathom  of  a  man,  two  yards  being  equal  to  the  height 
and  to  the  fathom  (or  extension  of  the  arms)  of  a  man  of 
full  height.  It  can  also  be  more  easily  reconstructed 
if  the  standard  measuring  rod  should  be  lost.  By 
Act  of  Parliament  of  Great  Britain,  it  is  declared 
that  if  the  standard  yard  shall  be  lost,  or  destroyed, 
it  shall  be  restored  by  making  a  new  standard  yard, 
bearing  the  proportion  to  a  pendulum  vibrating 
seconds  of  time  in  the  latitude  of  London,  in  a  vacuum, 
and  at  the  level  of  the  sea,  as  36  inches  to  39.1393 
inches.  This  is  the  actual  relation  between  them,  and 
a  new  standard  yard  exactly  equal  to  the  present  one 
could  be  constructed  from  a  pendulum.  But  if  the 


348  MISCELLANEOUS   WRITINGS. 

standard  metre  should  t>e  lost  or  destroyed,  it  could 
not  possibly  be  re-constructed,  except  in  the  same  way. 
In  theory  it  is  supposed  to  be  one  ten  millionth  part 
of  the  length  of  the  meridian  passing  through  Paris 
from  the  equator  to  the  pole.  The  length  of  this 
meridian  was  ascertained  by  estimation  in  French 
toises,  made  from  several  measurements  of  arcs  in 
different  countries.  There  is  no  certainty  that  a  new 
estimation  would  be  the  same.  Besides,  the  estimation 
itself  is  based  on  an  old  standard — the  toise.  The 
standard  metre  was  made  up  of  so  many  parts  of  a 
toise.  It  depends  on  the  toise,  and  that  has  gone  into 
disuse,  and  had  no  natural  standard  to  govern  its 
length.  The  certainty  and  uniformity  of  the  metre,  in 
fact,  depends  upon  some  one  metalic  bar  in  Paris,  just 
as  the  certainty  and  uniformity  of  the  yard  depends, 
in  practice,  on  another  metalic  bar  in  London.  Destroy 
those  metalic  bars,  and  both  the  yard  and  the  metre 
would  have  to  be  reproduced  in  precisely  the  same  way. 
The  best  standard,  after  all,  would  be  the  distance 
between  two  bolts  driven  into  the  face  of  some  rock, 
and  repeating  the  process  in  every  civilized  country,  and 
in  many  places.  These  bolts  being  faced  with  a  non- 
corroding  metal,  and  having  fine  lines  drawn  perpen- 
dicularly through  the  centres,  each  country  could 
measure  the  distance  between  these  lines  with  its 
own  standards.  The  distance  might  be  sufficiently 
large  to  avoid  the  multiplication  of  errors,  say  ten, 
twenty  or  thirty  feet,  so  as  easily  to  be  transferred 
from  one  country  to  another  by  means  of  a  single  rod. 
In  this  way  a  uniform  measure  could  be  preserved  in 
the  world  for  many  ages ;  and  each  nation  could,  as 
occasion  required,  correct  its  own  standard  thereby. 


SCIENTIFIC    "  STUDIES,"    LETTERS,    ETC.  349 

It  would  undoubtedly  be  a  matter  of  great  con- 
venience to  have  uniform  weights,  measures  and  money 
throughout  the  world,  but  it  is  a  thing  of  very 
difficult  accomplishment,  each  nation  being  wedded  to 
its  own  long-used  standards.  There  is  no  reason  on 
earth  why  the  English-speaking  world  should  abolish 
their  standards  and  adopt  the  French.  For  me,  it 
excites  my  disgust  and  indignation  to  see  our  sciolists 
in  their  written  articles  using  the  metre  instead  of  the 
foot  and  yard.  Our  literature  and  our  statistics  for  a 
thousand  years  are  pervaded  with  references  to  our 
own  standards.  Our  ideas  are  all  graduated  to  them 
by  habit  and  usage.  Why  should  we  be  frightened 
from  our  propriety  by  a  set  of  French  enthusiasts, 
who  wish  to  have  the  general  regulation  of  all  things  ? 
If  their  metre  had  anything  on  earth  to  recommend  it 
as  a  standard  in  preference  to  our  yard,  there  might 
be  some  reason  for  joining  in  the  cry  for  the  Metric 
System.  But  it  has  not  a  single  thing  to  give  it  such 
a  recommendation.  The  decimal  division,  if  that  is 
thought  desirable,  is  as  applicable  to  our  standards  as 
to  the  metre.  We  all  use  decimals  every  day  of  our 
lives.  I  concur  entirely  in  the  views  expressed  by  Sir 
John  Herschel  in  his  essay  on  the  Yard,  the  Pendulum 
and  Metre,  and  I  hope  that  our  volatile  and  change- 
loving  people  will  never  consent  to  the  adoption  of 
the  French  System. 

July  3d,  1880. 


350  MISCELLANEOUS   WRITINGS. 

THE  FORCE  OF  WATER  AS  USED  IN  HYDRAULIC 
MACHINERY  IN  MINING. 

The  circumstances  which  led  to  this  publication 
are  detailed  in  the  following  letter  from  Mr.  Justice 
Field  to  ex-United  States  Senator  James  G.  Fair : 

WASHINGTON,  D.  C.,  February  23,  1891. 
HON.  JAMES  G.  FAIR. 

DEAR  SIR  :  Last  evening  I  dined  at  General  Scho- 
field's  and  met  the  President.  There  were  a  number  of 
distinguished  people  present  besides  the  President, 
among  whom  were  the  Chief  Justice,  the  Speaker  of  the 
House  of  Representatives,  Senators  Sherman,  Stanford 
and  McMillen,  Secretary  of  the  Treasury,  Windom 
and  Mr.  McKinley  and  Mr.  Wheeler  of  the  House. 
During  the  evening  the  conversation  turned  upon 
California  and  her  wonderful  products  and  mining 
operations.  I  took  occasion  to  speak  of  hydraulic 
mining  and  the  wonderful  manner  in  which  the  hills 
are  torn  down  by  hydraulic  machinery.  I  stated  that 
I  had  understood  you  to  say  that  such  was  the  force 
of  the  water  thrown  through  a  hose,  when  it  came 
from  one  to  two  hundred  feet  in  height,  that  boulders 
weighing  half  a  ton  could  be  held*  (moved)  by  streams 
playing  upon  them,  and  that  the  force  was  sometimes 
so  great  that  it  would  be  impossible  to  cut  the  stream. 
At  this  statement  much  surprise  was  manifested,  and 
I  thought  a  smile  of  incredulity  passed  over  the 
features  of  the  guests.  Seeing  this,  I  said  that  I  would 
prove  the  facts  stated  in  a  communication  to  them. 

Now,  I  write  to  you  for  the  information  desired. 
Please  send  me  some  carefully  prepared  statistics  as  to 


SCIENTIFIC  ''STUDIES,"  LETTERS,  ETC.        351 

hydraulic  mining,  particularly  as  to  the  power  exerted 
by  a  column  of  water  thrown  by  such  machinery,  and 
as  to  how  large  boulders  can  be  held*  (moved)  by  the 
force  of  the  stream,  and  on  the  point  whether  it  is  true 
that  the  force  of  the  stream  is  sometimes  so  great  that  it 
cannot  be  cut.  I  would  be  much  obliged  if  you  could 
give  me  full  particulars  in  regard  to  these  matters  in  a 
communication  that  I  can  use,  if  necessary.  I  propose 
to  send  a  letter  to  each  one  of  the  guests,  stating  the 
facts,  and  thus  remove  the  incredulity  which  they 
evinced  when  the  statement  was  made  by  me.  I  want 
to  show  that  it  was  only  the  result  of  a  want  of 
experience  in  hydraulic  mining,  their  situation  being 
somewhat  like  that  of  the  King  of  Siam,  who  was 
offended  when  an  English  visitor  told  him  that  in  his 
country  water  was  often  so  hard  that  he  could  walk 
upon  it. 

Please  let  me  hear  from  you  at  your  earliest  con- 
venience, and  believe  me  to  be, 

Very  sincerely  yours, 

(Signed)         STEPHEN  J.  FIELD, 

Not  having  received  an  answer  from  Mr.  Fair,  on 
account  of  his  illness,  Mr.  Justice  Field  wrote  a  similar 
letter  of  enquiry  to  Augustus  I.  Bowie,  Esq.,  of  San 
Francisco,  the  author  of  a  work  of  great  learning  and 
merit  on  "Hydraulic  Mining";  and  also  another 
letter  of  the  same  character  to  Mr.  Christy,  Professor 
of  Mining  and  Metallurgy  in  the  University  of  Cali- 
fornia. 


•  <rMoved"  Instead  of  "held"  was  what  was  meant;  as  the  very 
force  striking  the  boulder  would  put  it  in  motion  instead  of  keeping  it  in 
repose,  unless  special  preparation  were  made  for  the  impact,  as  stated  in 
the  letter  of  Prof.  Christy. 


352  MISCELLANEOUS  WRITINGS. 

Subsequently  a  letter  was  received  from  Mr.  Fair, 
enclosing  one  on  the  subject  from  Mr.  Glass,  who  for 
sixteen  years  had  been  superintendent  of  a  hydraulic 
mine  in  that  State,  and  also  the  following 

LETTER   FROM   MR.  JUSTICE   BRADLEY   OF  THE  U.  S. 
SUPREME    COURT. 

WASHINGTON,  D.  C.,  March  5,  1891. 
DEAR  JUDGE  FIELD  : 

The  velocity  of  water  issuing  from  a  pipe  is,  of 
course,  due  to  the  pressure  it  receives— natural  or 
artificial.  If  derived  from  a  natural  head  of  water,  it 
is  proportional  to  the  square  root  of  such  head  or 
height.  If  it  were  not  for  the  resistance  from  the 
friction  of  the  pipe  and  contraction  of  the  vein  as  it 
issues  from  it,  the  velocity  would  be  eight  times  the 
square  root  of  the  height  in  feet,  or,  more  accurately, 
8.025  times.  The  resistance  varies  according  to  circum- 
stances. If  the  water  has  to  be  carried  a  long  distance 
in  the  pipe,  or  if  the  pipe  is  rough  or  crooked,  it  is 
considerable.  Supposing  the  reservoir  near,  and  the 
pipe  favorably  arranged,  the  velocity  will  be  75  per 
cent,  of  the  theoretical  amount,  or  six  times  the  square 
root  of  the  height.  Thus,  suppose  the  head  to  be 
450  feet ;  its  square  root  is  21.2,  multiplied  by  6,  it 
equals  127.2  feet  velocity  per  second.  If  the  cross- 
section  of  the  pipe  were  equal  to  one  square  foot,  this 
velocity  would  produce  a  discharge  of  127.2  cubic 
feet  per  second.  A  round  pipe,  6  inches  in  diameter, 
having  a  cross-section  of  only  .19635  square  feet, 
would  discharge  only  24.975  (say  25)  cubic  feet  per 
second. 


SCIENTIFIC    "  STUDIES,"    LETTERS,    ETC.  353 

But  this  25  cubic  feet  issues  with  a  velocity  of 
127.2  feet.  Multiplied  together,  it  shows  an  effective 
force,  or  momentum,  of  3,180  cubic  feet  moving  at 
the  rate  of  1  foot  per  second.  As  each  cubic  foot  of 
water  weighs  62Ys  pounds,  the  above  result  is  equiva- 
lent to  198,750  pounds,  moving  1  foot  per  second. 
This  is  what  is  meant  by  foot  pounds. 

A  horse-power  is  equal  to  33,000  foot  pounds  per 
minute,  or  550  per  second.  Therefore,  dividing 
198,750  by  550,  we  have  461  T\  horse-power. 

The  force  of  soft  substances,  when  thrown  with 
great  velocity,  almost  exceeds  belief.  A  gun  wadding 
may  be  made  to  perforate  a  plank.  An  injector  has 
been  invented  (by  a  Mr.  Jeffards,  I  believe)  for  injecting 
water  into  a  locomotive  boiler,  in  which  the  pressure 
often  exceeds  100  pounds  to  the  square  inch  ;  and  yet, 
by  this  instrument,  a  small,  swift  stream  of  water  is 
injected  into  the  boiler  with  perfect  ease.  I  can  well 
believe  all  that  you  say  with  regard  to  the  tremendous 
force  of  streams  issuing  from  the  pipes  of  the  miners 
under  a  large  head  of  water.  Of  course  they  would 
produce  instant  death  if  directed  against  a  man  stand- 
ing near,  and  would  probably  cut  his  body  in  two. 

Yours  sincerely, 
(Signed)        JOSEPH  P.  BRADLEY. 


RELIGIOUS  AND  MORAL. 


ESSAYS   AND    LETTERS.  357 

JUDGE  BRADLEY  ON  RELIGION  IN  THE  CONSTI- 
TUTION. 

Among  the  letters  received  by  Rev.  Mr.  McAlister, 
Secretary  of  the  Association  which  recently  held  a 
convention  in  Cincinnati  for  the  purpose  of  urging  an 
amendment  to  the  Constitution,  "which  shall  acknowl- 
edge God,  was  the  following  from  Judge  Bradley,  of 
the  U.  S.  Supreme  Court.  It  shows  his  own  convic- 
tion of  the  necessity  of  religion  as  the  basis  of  civil 
government,  but  it  must  reside  not  in  the  written 
Constitution,  but  in  the  people  themselves,  and  cannot 
be  forced  into  them  by  legislation : 

WASHINGTON,  December  7,  1871. 
REV.  D.  MCALISTER. 

DEAR  SIR  :  Yours  of  the  2d  instant  has  been 
received,  requesting  me  to  unite  in  the  call  of  a  conven- 
tion favorable  to  an  amendment  of  the  Constitution 
of  the  United  States,  which  shall  acknowledge  God  as 
the  author  of  the  nation's  existence  and  the  source 
of  its  authority,  Jesus  Christ  as  its  Ruler,  and  the 
Bible  as  the  foundation  of  its  laws  and  the  supreme 
rule  of  its  conduct.  As  you  have  done  me  the  honor 
of  writing  me  a  special  letter  on  the  subject,  I  feel 
bound  in  courtesy  to  answer  it. 

I  have  never  been  able  to  see  the  necessity  or 
expediency  of  the  movement  for  obtaining  such  an 
amendment.  The  Constitution  was  evidently  framed 
and  adopted  by  the  people  of  the  United  States  with 
the  -fixed  determination  to  allow  absolute  religious 
freedom  and  equality,  and  to  avoid  all  appearance 
even  of  a  State  religion,  or  a  State  endorsement  of 


358  MISCELLANEOUS   WRITINGS. 

any  particular  creed  or  religious  sect.  Various  oaths 
of  office  and  of  fidelity  to  the  Constitution  are  pre- 
scribed in  the  instrument  itself,  but  always  coupled 
with  an  alternative  privilege  of  making  an  affirmation 
instead  of  an  oath.  And  after  the  Constitution  in 
its  original  form  was  adopted,  the  people  made  haste 
to  secure  an  amendment  that  Congress  shall  make 
no  law  respecting  an  establishment  of  religion,  or 
prohibiting  the  free  exercise  thereof.  This  shows  the 
earnest  desire  of  our  Revolutionary  fathers  that  religion 
should  be  left  to  the  free  and  voluntary  action  of  the 
people  themselves.  I  do  not  regard  it  as  manifesting 
any  hostility  to  religion,  but  as  showing  a  fixed 
determination  to  leave  the  people  entirely  free  on  the 
subject. 

And  it  seems  to  me  that  our  fathers  were  wise ; 
that  the  great  voluntary  system  of  this  country  is 
quite  as  favorable  to  the  promotion  of  real  religion  as 
the  systems  of  governmental  protection  and  patronage 
have  been  in  other  countries.  And  whilst  I  do  not 
understand  that  the  association  which  you  represent 
desire  to  invoke  any  governmental  interference,  still 
the  amendment  sought  is  a  step  in  that  direction 
which  our  fathers  (quite  as  good  Christians  as  our- 
selves) thought  it  wise  not  to  take.  In  this  country 
they  thought  they  had  settled  one  thing  at  least, 
that  it  is  not  the  province  of  government  to  teach 
theology. 

Therefore,  whilst  no  person  in  your  association 
places  a  higher  estimate  than  I  do  on  the  great 
importance  and  absolute  necessity  of  religious  training 
and  religious  convictions  to  the  stability  of  any  gov- 
ernment ;  I  do  not  believe  that  the  end  will  be  at  all 


ESSAYS  AND   LETTERS.  359 

subserved  by  the  proposed  Constitutional  amendment. 
Religion,  as  the  basis  and  support  of  civil  government, 
must  reside,  not  in  the  written  Constitution,  but  in 
the  people  themselves.  And  we  cannot  legislate  religion 
into  the  people.  It  must  be  infused  by  gentler  and 
wiser  methods. 

Respectfully,  your  obedient  servant, 

JOSEPH  P.  BRADLEY. 


CHRISTIANITY,  ITS  IMMORTALITY. 

A  noble  evidence  of  the  living  and  inextinguishable 
truth  of  Christianity  is  the  fact  of  the  Reformation. 
That  Reformation  was  but  an  emanation  of  the  spirit 
of  Christianity  itself.  Other  religions  have  forever 
gone  on  in  the  accumulation  of  ceremonies  and  super- 
stitious observances,  and  never  exhibited  any  innate 
principle  of  life  sufficient  to  throw  off  the  deformities 
so  superinduced  upon  them.  If  they  have  felt  the 
benefit  of  a  correcting  hand,  that  hand  has  been 
directed  and  applied  by  the  progressive  influence  of 
the  sciences  and  civilization.  But  the  Christian  religion, 
kindled  by  the  fire  of  its  own  never-dying  truth  as 
preserved  in  the  Holy  Scriptures,  the  flame  that  rose 
so  luminously  over  the  nations  of  the  West  in  the 
middle  of  the  sixteenth  age. 

December  2,  1838. 


360 


MISCELLANEOUS    WRITINGS. 


NOAH'S  ARK. 

This  structure  was  500  feet  long  and  75  in  width, 
and  consisted  of  three  stories.  This  would  admit  on 
each  story  four  rows  of  stalls  lengthwise  of  the  ark, 
each  14  feet  in  depth,  leaving  two  passages  the  whole 
length  9^  feet  in  width,  according  to  the  annexed 
figure. 


500  FBET  IN  LENGTH. 


PASSAGE  QYa  FEET. 


PASSAGE  QYa  FEET. 


600  FEET  ix  LENGTH. 


14  FT. 
9%  FT. 

14  FT. 

14  FT. 
Wt  FT. 

14  FT. 

75  FT. 


Each  row  divided  into  62  stalls  would  give  them  8 
feet  in  width— this  would  be  sufficient  for  each  species 
of  animal  on  an  average,  and  consequently  would 
accommodate  248  species  of  animals.  Gleig  says  that 
there  have  been  estimated  from  200  to  250  different 
species  of  quadrupeds.  The  Editor  of  Buffon's  Nat. 
Hist,  says  that  some  minute  philosophers  even  go  so 
far  as  to  make  400  species.  This  appears  to  be  extrav- 
agant. See  Raleigh's  History  of  the  World.  Raleigh, 
following  Budaen's,  makes  only  264  individual  animals 
in  the  ark,  89  species— but  this  was  in  the  beginning 
of  the  nineteenth  century. 

Now,  we  may  suppose  that  the  contents  of  the 
ark  were  distributed  somewhat  in  this  way.  The 


ESSAYS   AND   LETTERS.  361 

reptiles  and  the  provisions  for  the  beasts  in  the  lower 
story,  the  beasts  on  the  second  story,  and  the  birds 
and  Noah's  family  in  the  third  story,  together  with 
their  provisions.  It  is  supposed  that  there  were  only 
three  kinds  of  beasts  which  went  in  by  sevens — cows, 
sheep  and  goats,  and  two  kinds  of  birds— turtles  and 
pigeons,  as  these  were  the  only  animals  used  in  sacri- 
fices. Vid.  Brown's  Diet.,  Title  "Beast"  and  Bokart's 
Hierozoicon,  in  which  latter  work  the  Zoology  of  the 
Bible  is  ably  discussed. 

Noah  went  into  the  Arc  aoout  the  1st  of  November. 
The  Hebrew  year  for  civil  purposes  commenced  with 
the  month  Tisri,  which  was  the  month  or  moon  that 
commenced  nearest  to  the  Autumnal  Equinox. 


THE  MORAL  FACULTY. 

The  Moral  Faculty  is  that  power  of  the  mind 
which  perceives,  approves  and  obeys  the  right  as  dis- 
tinguished from  the  wrong  in  actions.  It  has  three 
distinct  functions,  as  indicated  by  the  definition— per- 
ception of  what  is  right ;  approval  of  it ;  and  deter- 
mination to  follow  it. 

The  first  of  these,  perception,  is  sometimes  called 
the  moral  sense,  moral  consciousness,  or,  simply  con- 
science ;  the  second,  approval,  is  called  moral  disposi- 
tion or  rectitude,  the  third  is  called  the  will. 

A  highly  civilized  and  Christian  society,  like  ours, 
posse'sses  so  many  means  of  moral  instruction,  and  so 
much  moral  light,  that  it  is  not  difficult  in  most  cases 
to  know  what  is  right  and  what  is  wrong.  The 


362  MISCELLANEOUS   WRITINGS. 

conscience  becomes  insensibly  educated  to  a  high 
standard.  The  lessons  of  the  Bible  as  expounded  in 
religious  assemblies,  in  schools  and  in  families;  the 
ethical  teachings  of  our  laws  and  literature ;  of  our 
daily  intercourse  with  others  and  our  own  experience, 
leave  little  to  be  sought  in  the  way  of  instruction, 
except  amongst  the  very  poor  and  destitute  classes. 
Still,  some*men  are  gifted  with  a  keener  sense  of  right 
and  wrong  than  others. 

The  second  function,  moral  approbation  or  inclin- 
ation, is  not  so  generally  depraved  as  some  imagine. 
Most  men  approve  right  rather  than  wrong  ;  would 
rather  do  right  than  wrong,  if  other  motives  did  not 
intervene.  A  pure  love  of  evil  is  not  an  innate  senti- 
ment of  the  human  heart.  Men  do  evil  not  for  the 
love  of  evil,  but  because  seduced  by  appetites  and 
passions.  Wealth,  power,  sensual  pleasure  often 
present  strong  temptation  to  adopt  devious  ways  for 
their  attainment. 

And  here  comes  in  the  proper  office  of  the  will,  the 
third  function  of  the  moral  faculty.  It  is  not  so  much 
for  lack  of  knowledge  of  what  is  right,  nor  of 
appreciation  of  the  right,  that  men  do  wrong;  but 
the  great  source  of  evil-doing  lies  in  the  will.  The 
will  is  not  strong  enough  to  resist  temptation ;  to 
wrestle  with  the  appetites  and  passions.  Here  is  the 
weak  point  of  human  nature — the  strength  of  the 
passions  and  the  feebleness  of  the  will  to  resist  them. 
With  the  strongest  desire  to  do  right,  with  even  a  love 
of  the  right,  the  will  often  weakens  before  temptation, 
like  wax  before  fire,  and  straightway  wrong  is  com- 
mitted, followed  by  sorrow  and  remorse  of  conscience. 

The  great  problem,  therefore,  for  every  one  to  solve 


ESSAYS  AND   LETTERS.  363 

is,  how  to  subdue  his  passions  and  strengthen  his  will 
to  act  rightly.  The  two  things,  though  mutually 
concerned  in  the  formation  of  the  moral  character,  are 
not  reciprocal.  A  strong  will  may  co-exist  with 
fierce  passions,  and  keep  them  in  subjection,  but  the 
true  Christian  soldier  will  guard  well  both  sides  of  the 
fort.  He  will  endeavor  to  subdue  his  passions,  and, 
at  the  same  time,  to  strengthen  his  will  power. 

The  power  of  the  will  is  very  different  in  different 
persons  by  natural  constitution.  The  will  is  as 
much  a  natural  faculty  in  each  individual  as  memory 
or  imagination  or  any  other  innate  power,  in  which 
men  differ  as  much  as  they  do  in  stature  and  features. 
Hence,  if  the  will  is  naturally  weak,  or  inclined  to 
weakness,  it  requires  great  and  continued  attention 
and  habitual  effort  to  bring  it  to  a  condition  of  per- 
manent improvement  in  strength  and  firmness.  Lax 
measures  will  never  succeed.  The  least  indulgence  of 
weakness  throws  all  back  again  to  be  recovered  by 
repeating  the  same  painful  efforts  as  before.  In  this 
respect  a  naturally  weak  will  is  like  drunkenness, 
which,  when  it  has  once  subdued  a  man  to  its  bondage, 
cannot  be  thrown  off  by  fitful  efforts  at  reformation ; 
but  must  be  utterly  crushed  out  and  destroyed  by  a 
firm  and  persistent  rejection  of  every  solicitation  and 
approach. 

An  indispensable  means  of  fortifying  the  will  is  the 
adoption  of  fixed  principles  of  action,  to  be  adhered 
to  without  swerving ;  principles  based  on  truth  and 
right.  Anything  that  for  an  instant  solicits,  or  even 
-suggests,  a  departure  from  these  principles  should  be 
instantly  repelled  without  allowing  the  indulgence  of 


364  MISCELLANEOUS   WRITINGS. 

a  thought  that  it  can  be  entertained  for  a  moment. 
The  importance  of  having  settled  in  one's  mind  a 
system  of  fixed  principles  of  conduct  cannot  be  over- 
estimated. 


PRECEPT  AND  EXAMPLE. 

1.  In  morals,  precept  is  nothing,  example  is  every- 
thing.    A  really  good  and  noble  character  once  clearly 
discerned  in  its  living  active  force,  is  a  better  incentive 
to  virtue  than  all  homilies.     But  as  such  a  vision  is 
not  often  vouchsafed  ;  as  men  do  not  thus  ordinarily 
reveal  themselves  to  others ;  the  nearest  approach  to 
the  same  thing  is  the  daily  and  hourly  life  and  conduct 
of  such  a  person ;  by  which,  as  by  letters  and  signs, 
the  true  character  is   gradually  revealed  and  made 
known,   imprinting  itself,  like   a  portrait,  upon  the 
minds  and  hearts  of  others. 

2.  In  human  life  opportunity  is  everything.     Suc- 
cess depends  upon  opportunity.     Acquirements,  learn- 
ing, aptitude,  practical  ability,  greatness,  depend  on 
opportunity.     A   library   placed   away  in  a  dark   or 
cold  room,  or  on  inaccessible  shelves,  will  benefit  a 
man  or  his  family  but  little.     But  if  ranged  around 
the  family  rooms,  where  all  is  cheerful  and  pleasant, 
where  the  family  live,  and  within  reach  of  the  hand,  it 
will  become   a   rich   treasure    and    an  indispensable 
luxury. 

The  best  legal  talents,  without  opportunity  for 
their  exercise,  will  rust  and  decay ;  without  oppor- 
tunity for  their  display,  they  will  disgust  their 


ESSAYS   AND   LETTERS.  365 

possessor.  Life  consists  in  hope,  and  a  consciousness 
of  being  of  some  use  in  the  world.  Without  these  it 
is  a  living  death.  Without  opportunity,  hope  and  joy 
are  strangers  to  the  yearning  soul. 

3.  The  active  employment  of  the  faculties  alone 
can  make  us   useful  or  happy.     Hence   it    is    that 
adversity  is  a  rich  soil  which  ever  produces  fruitful 
results  in  character  and  ability.     It  puts  a  young  man 
upon  his  mettle,  brings  out  what  is  excellent  and  good  in 
him,  and  makes  him  a  really  great  and  noble  character. 
But  prosperity  is  attended  with  ease  and  indolence  as 
inseparably  as  the  shadow  follows  the  sun.     Thus  it 
happens  that  our  greatest  and  best  men,  as  well  as 
our  most    wealthy    and    successful,    are    constantly 
springing  up  from  the  lower    or  middle  classes  of 
society.     Thus  it  also  happens  that  troublous  times 
in  the  history  of  a  nation  almost  invariably  produce 
examples  of  great  talent  and  heroism.     And  nothing, 
on  the  other  hand,  is  more  sure  to  sap  the  foundations 
of  national  strength  than  habits  of  luxury  and  ease 
indulged  in  by  its  young  men.     Every  American,  as  a 
matter  of  honor  and  just  pride,  ought  to  have  a  call 
ing— a  something  to  do  ;  and  he  ought  conscientiously 
to  follow  it,  not  only  on  account  of  the  example,  but 
on  his  own  accent. 

4.  Those  who  place  religion  in  the  belief  of  certain 
theological  dogmas  mistake  its  true  character.    Christ 
placed  it  in  love  to  God  and  man.    John  held  these  to 
be  inseparable.     "  If  a  man  say   he  loves  God  and 
hateth  his  brother,  he  is  a  liar."    James  declared  that 
pure  religion  is  this,  to  visit  the  fatherless  and  widow 
in  their  affliction  and  to  keep  himself  from  the  world. 
Paul  said,  "  There  are  three  things,  faith,  hope  and 
charity,  and  the  greatest  of  these  is  charity." 


366  MISCELLANEOUS  WRITINGS. 

5.  The  Greek  expression  for  human  perfection,  To 
Ka\ov,  is  full  of  deep  meaning.     To  say  and  to  do  just 
what  is  proper  on  every  occasion  of  life  is  indeed  per- 
fection, if  not  greatness.     It  implies  being  equal  to 
every  occasion,  and  meeting  it  accordingly.     If  this  is 
not  true  greatness,  what  is  ?     He  who  is  competent  to 
the  age  and  country  in  which  he  lives ;  silent  when 
silence  is  proper  ;  eloquent,  when  eloquence  is  needed ; 
energetic  in  action,  when  action  is  required  ;  always 
accomplishing,    always  meeting  the   demands  of  the 
time ;  is  either  the  truly  great  man,  or  better  than  a 
great  man. 

6.  It  is  the  duty  and  should  be  the  pride  of  every 
American  to  have  an  honest  and  useful  calling,  and  to 
pursue  it.     I  care  not  what  it  is  ;  be  it  honorable  and 
faithfully  pursued.     This  is  necessary  to  the  interest  of 
the  Commonwealth,  and  to  the  happiness  and  virtue 
of  the  individual.     It  should  also  be  necessary  to  the 
entre  of  society.     Elegant  loungers  should  be  as  coldly 
received  as  tipplers  and  gamblers.     But  whilst  this  is 
our  beau-ideal  of  a  healthy  social  life,  it  is  perhaps  too 
much  to  expect  of  ordinary  human  nature. 


EXAMPLE. 

An  act  of  kindness  to  another  does  more  to  produce 
a  kind  feeling  on  his  part  than  the  finest  lesson  in 
words.  Kindness  produces  kindness  ;  sympathy,  sym- 
pathy ;  anger,  anger ;  and  every  emotion  felt  and 
exhibited  is  met  responsively  by  corresponding  emo- 
tions in  others.  This  is  the  sentiment  which  the  Jewish 


ESSAYS   AND   LETTERS.  367 

interpreters  attribute  to  the  proverb  :  "As  in  water 
face  answereth  to  face,  so  the  heart  of  man  to  man." 
The  facts  of  human  consciousness  and  experience  are 
the  safest  interpreters  of  religious  and  moral  formulas. 
For  those  formulas  have  generally  been  attempts  to 
express  such  consciousness  and  experience.  And  actual 
manifestations  of  character  make  a  far  deeper  impres- 
sion than  set  moral  phrases  or  the  best  composed 
lessons.  Actions  speak  louder  than  words.  Just  as 
in  the  natural  world,  or  in  matters  of  science,  a  fact 
actually  observed  is  rarely  forgotten,  whilst  verbal 
lessons  conveying  the  same  facts  pass  unheeded,  so  in 
the  moral  world,  real  exhibitions  of  character,  dispos- 
ition or  principle  affect  the  heart  more  deeply,  and  the 
conduct  more  durably,  than  any  verbal  teachings 
can  do.  Hence  Christ  profoundly  enjoins,  "  Let  your 
light  so  shine  before  men  that  they  may  see  your  good 
works,  and  glorify  your  Father  which  is  in  heaven." 


REFORMERS. 

Great  Reformers  are  such  because  they  are  great 
thinkers,  and  hence,  in  advance  of  their  times.  A  few 
great  seminal  thoughts  affecting  practical  life  generally 
characterize  their  teachings.  These  are  often  repeated 
in  conversations  and  presented  in  different  points  of 
view,  until  their  hearers  become  perfectly  imbued  with 
their  spirit.  Their  written  works  are  generally  the 
least  -important  part  of  their  power,  which  arises 
more  from  their  personal  influence,  and  the  intensity 
of  their  conceptions  and  utterances.  Their  most  pow- 


368  MISCELLANEOUS  WRITINGS. 

erful  and  influential  sayings  are  recorded  by  devoted 
followers,  and  thus  preserved  for  the  guidance  of  future 
ages.  Witness  the  remains  of  Confucius,  which 
were  collected  and  preserved  by  his  disciples.  "  The 
Master  said,"  thus  and  so,  is  the  style  in  which 
they  read.  Socrates  wrote  no  book.  His  scholars 
reported  his  conversations.  Jesus  Christ's  discourses 
are  all  that  we  have  of  him.  Mahomet's  chapters  of 
the  Koran  were  oracular  discourses  uttered  at  various 
times.  Luther  wrote,  it  is  true,  but  his  great  power 
lay  in  his  talking  and  preaching,  and  in  his  bold 
enunciations  of  grand  truths.  His  "Table  Talk,"  so 
assiduously  preserved  by  his  companions,  show  the 
man  and  his  power  far  better  than  any  of  his  treatises. 
The  Reformer  was  not  Luther,  the  man  of  the  closet, 
but  Luther,  the  man  of  the  world.  The  secondary 
spirits  of  the  Reformation,  Melancthon,  Calvin,  etc., 
wrote  and  acquired  greatest  repute  by  their  writings. 
And  so  I  might  go  on  with  the  list. 


THE  LORD'S  PRAYER. 

The  Lord's  Prayer  is  an  Epitome  of  Christianity, 
as  taught  by  Jesus  Christ.  "  Our  Father  in  Heaven," 
teaches  us  to  address  our  petitions  immediately  to  the 
Supreme  Being,  without  intervention  or  mediation— 
without  the  aid  of  Priest  or  intercessor.  Whether  poor 
or  rich,  wise  or  foolish,  we  are  all  equal  before  him 
whom  we  address.  It  teaches  that  He  is  One ;  that 
He  is  our  Father,  consequently,  that  He  cares  for  us, 
and  will  protect  and  bless. 


ESSAYS  AND   LETTERS.  369 

Where,  when  or  by  whom,  before  Jesus  Christ,  was 
it  taught  thus  ?  Fatherhood  of  God— Brotherhood 
of  Men.  "Hallowed  be  thy  name."  That  is,  may 
we  be  imbued  with  the  deepest  reverence  for  Thy 
being  and  character. 

"  Thy  Kingdom  come,  Thy  will  be  done  on  earth 
as  it  is  in  heaven.1' 

This  is  an  aspiration  for  God's  reign  in  earth— over 
the  hearts  and  lives  of  all  men  ;  a  longing  for  universal 
truth,  justice  and  love. 

"  Give  us  this  day  our  daily  bread"  that  is  all,  not 
Power,  Wealth,  Glory,  but  that  which  suffices  for  our 
sustenance  and  comfort  and  elevation  in  knowledge 
and  usefulness. 

"  Forgive  us  our  debts  as  we  forgive  our  debtors." 

"  Lead  us  not  into  temptation,  but  deliver  us  from 
evil." 

That  is,  remit,  overlook,  forgive,  our  past  offences, 
and  help  us  to  offend  no  more.  Remove  temptation 
from  us.  Keep  us  from  falling. 

Here  is  the  whole  essence  of  the  Christian  religion. 

1.  God's  existence,  fatherhood  and  loving  kind- 
ness to  all,  and  hence  His  attention  to  our  wants  and 
prayers. 

2.  The  equality  and  brotherhood  of  all  men,  and 
hence  the  duty  of  Universal  Charity. 

3.  The  prime  importance  of  our  spiritual  nature, 
and  hence  the  secondary  importance  of  sensuous  and 
material  things. 

4.  The  need  of  God's  forgiveness  and  help,  and 
hence  the  hopelessness  of  an  unforgiving  spirit. 

In  reason  we  can  only  ask  forgiveness  as  we  for- 
give. 


370  MISCELLANEOUS  WRITINGS. 

THE  BIBLE. 

As  a  book  of  pious  meditation  and  exercitations 
on  morality  and  religion,  the  Bible  is  a  valuable  repos- 
itory. The  Jewish  intellect  was  ever  keen  and  its 
religious  insight  profound,  tracing  with  remarkable 
accuracy  the  springs  of  action  and  the  respective  con- 
sequences of  immoral  and  virtuous  conduct. 

The  devotional  fervor  of  the  Psalms,  the  senten- 
tious wisdom  of  the  book  of  Proverbs,  and  the  pro- 
found reflections  of  Ecclesiastes  on  the  vanity  of  life 
are,  in  their  several  ways,  superior  to  any  similar 
productions  of  other  nations.  The  sublime  emotions 
of  the  soul  when  conscious  of  a  Divine  Presence 
and  the  stern  conclusions  of  Reason  on  human  char- 
acter and  destiny,  cannot  be  fitted  to  more  beautiful 
or  expressive  forms  of  imagery  and  speech.  The 
prophetical  writings  also  abound  with  sublime  pas- 
sages of  exalted  moral  exhortation  and  instruction,  as 
well  as  vehement  denunciations  of  vice.  Add  to  these 
the  simple  and  searching  lessons  of  faith,  sincerity, 
purity  of  heart  and  universal  charity  of  the  New 
Testament,  and  we  shall  find  sufficient  foundation  for 
the  moral  power  exerted  by  the  Christian  religion 
upon  the  nations  which  have  been  subjected  to  its 
influence.  The  theological  dogmas  and  articles  of 
faith  which  have  been  attached  to  it,  whether  from 
the  first,  or  by  subsequent  ecclesiastical  authority, 
have  not  affected  its  genuine  power  over  the  hearts 
and  lives  of  men  as  an  instrument  of  moral  elevation, 
civilization  and  refinement. 

This  much  may  be  said  of  the  value  and  influence  of 
the  Bible,  without  entering  into  the  question  of  special 


ESSAYS   AND   LETTERS.  371 

revelation  and  miracles,  which  have  so  much  agitated 
both  the  curious  inquirers  and  the  superstitious 
devotees  of  the  Christian  world.  And  this  view  of 
its  office  and  mission  is  consistent  with  the  free  and 
intelligent  use  of  all  similar  aids  to  virtue  and  spiritual 
elevations  to  be  found  in  the  sayings  of  the  great 
and  good  of  all  nations  and  times.  It  is  an  undue 
exaltation  of  a  single  book  which  places  all  others  in 
the  background  as  utterly  worthless.  The  Caliph 
Omar  committed  this  error  when  he  ordered  the  burn- 
ing of  the  Alexandrian  library,  on  the  ground  that  if 
it  contained  more  than  was  in  the  Koran  it  could  not 
be  true,  and  if  it  contained  less,  it  was  useless.  The 
gathered  wisdom  of  the  ages  is  the  common  inherit- 
ance of  mankind,  and  every  scattered  ray  contributes 
to  the  fall  blaze  of  modern  enlightenment.  The  skil- 
ful eclectic  will  find  many  gems  of  truth  in  the  utter- 
ances of  Menu,  Boudha  and  Confucius,  and  much 
sound  ethics  in  the  Greek  and  Roman  philosophies. 
To  despise  them  is  to  throw  away  a  large  portion  of 
the  legacy  of  antiquity.  It  would  be  equal  folly  to 
reject  the  wisdom  of  the  moderns. 

The  difficulty  is,  that  there  is  a  strange  tendency  in 
human  nature  to  adopt  some  one  authoritative  stand- 
ard and  blindly  to  rest  on  that,  rejecting  everything  else. 
This  tendency  sometimes  goes  so  far  as  to  adopt  some 
man  or  class  of  men  to  decide  all  matters  of  faith  and 
duty.  The  generality  of  mankind  prefer  implicitly  to 
follow;  and  hence  they  are  ever  ready  to  worship 
some  saint  in  religion  and  hero  in  power,  or  some  one 
or  more  whom  they  imagine  to  be  such.  But  a  wise 
man  is  he  who  tries  all  things  and  holds  fast  to  that 
which  is  good. 

July  7,  1875. 


372  MISCELLANEOUS  WRITINGS. 


TRANSLATIONS. 

Translations  are  made  upon  different  principles; 
some  are  very  literal,  preserving  the  idioms  and 
arrangement  of  the  original  text ;  others  are  so  free 
and  paraphrastic  that  the  original  work  is  hardly 
recognized.  It  is  singular  that  the  two  greatest  Bible 
translators  in  modern  times,  Luther  and  Tyndale, 
adopted,  independently  of  each  other,  a  most  excellent 
principle,  which  greatly  contributed  to  the  popularity 
of  their  respective  works  ;  and  this  was,  to  render  the 
Bible  into  pure  vernacular  speech  adapted  to  the  com- 
mon understanding,  and  avoiding  all  idiomatic  pecul- 
iarities of  the  original  tongues,  and  all  unnecessary 
ecclesiastical  and  scholastic  terms.  They  thus  produced 
for  their  respective  nations,  German  and  English,  the 
People's  Book,  which  not  only  addressed  itself  to  the 
popular  heart,  but  became  the  standard  of  the  lan- 
guage. "If  God  spare  my  life,"  said  Tyndale,  "ere 
many  years  I  will  cause  a  boy  that  driveth  the  plow 
to  know  more  of  the  Scriptures  than  the  Pope  does." 
"The  words  of  the  Hebrew  tongue,"  said  Luther, 
"  have  a  peculiar  energy.  To  render  them  intelligently 
we  must  not  attempt  to  give  them  word  for  word, 
but  only  aim  at  the  sense  and  idea.  In  translating 
Moses  I  made  it  my  effort  to  avoid  Hebraism  ;  it  was 
an  arduous  business."  The  revisers  of  King  James's 
time  strove  to  make  the  translation  more  literal,  and 
in  doing  so  often  injured  its  beauty  and  force. 


ESSAYS   AND    LETTERS.  373 

THE  ENGLISH  TRANSLATION  OF  THE  BIBLE. 


HISTORICAL   LECTURE   BY  JOSEPH   P.    BRADLEY. 


Joseph  P.  Bradley,  Esq.,  delivered  an  interesting 
lecture  on  the  "  History  of  the  English  Translation  of 
the  Bible,"  in  the  lecture  room  of  the  North  Reformed 
Dutch  Church,  last  evening  (December  26,  1867).  The 
easy  colloquial  style  which  the  lecturer  assumed  gave 
additional  interest  to  his  discourse  and  made  the  enter- 
tainment thoroughly  enjoyable.  He  first  stated,  by  way 
of  introduction,  that  it  was  undoubtedly  the  intention 
of  the  Almighty  that  the  Bible  should  be  given  to 
every  people  in  their  own  language,  that  they  might  be 
fully  able  to  understand  it.  This,  certain  orders  of  the 
clergy  for  ages  refused  to  acknowledge,  being  desirous 
of  making  their  professional  class  necessary  as  inter- 
preters between  God  and  the  people  and  of  preserving 
the  mystery  which  was  necessarily  connected  with  the 
Word  of  God  in  an  unknown  tongue.  He  then  briefly 
considered  the  history  of  the  English  language  and 
from  what  dialects  it  was  formed,  and  what  progress 
had  been  made  in  the  Anglo-Saxon  literature,  in  the 
Norman,  and  finally  in  the  two  combined,  or  the 
English.  In  the  Saxon,  there  were  five  or  six  transla- 
tions of  the  four  gospels,  in  the  Norman  there  was 
only  one. 

The  latter  was  not  much  used,  as  the  lower  class 
of  the  people  knew  but  little  of  what  was  to  them  a 
foreign  dialect.  In  the  century  in  which  the  Norman 
and  Saxon  became  united,  John  Wickliffe  lived.  To  him 
belongs  the  honor  of  the  first  English  translation.  By 


374  MISCELLANEOUS   WRITINGS. 

his  own  labors  in  1360  he  had  completed  the  New 
Testament ;  in  1380,  with  the  aid  of  others,  the  whole 
Bible  was  completed.  Printing  not  having  been 
invented,  the  circulation  of  this  was  of  necessity  very 
slow.  There  are  now  extant  over  one  hundred  copies 
of  the  manuscript  in  different  parts  of  England ;  and 
the  Bible  has  been  printed  within  a  few  years  past  as  a 
literary  curiosity  to  show  the  condition  of  the  language 
in  the  fourteenth  century.  Mr.  Bradley  read  the  fifth 
chapter  of  Matthew  and  the  Lord's  Prayer  from 
Wickliffe's  translation. 

During  the  fifteenth  century  England  was  under 
Popish  influence,  and  attempts  were  made  to  repress 
the  translations  which  had  already  been  made.  About 
the  middle  of  the  century,  in  1452,  the  Greeks  were 
driven  from  Constantinople  and  the  learning  which 
they  had  centered  there  was  spread  over  the  western 
world.  English  literature  received  new  accessions  by 
the  settlement  of  some  of  the  Greek  scholars  as  pro- 
fessors in  their  institutions  of  learning.  This,  with 
other  favoring  causes,  gave  an  impetus  to  mind,  and 
produced  a  general  awakening  of  the  nations— called 
by  the  French,  the  Renaissance,  and  by  the  English  and 
Germans,  the  Reformation.  In  1517  Luther  set  in 
motion  the  ball  which  never  rested  in  its  course  till 
the  thralldom  of  the  dark  ages  was  broken.  William 
Tyndale  was  one  of  those  men  in  England  in  whose 
breast  the  fire  of  pure  religion  burned. 

He  was  a  profound  scholar,  and  felt  an  ardent  desire 
to  give  to  his  countrymen  the  unadulterated  word  of 
God,  which  he  loved  so  much  ;  and  in  1520  he  declared  to 
an  eminent  divine  of  the  old  school,  "  Ere  many  years 
I  will  cause  a  boy  that  driveth  a  plow  to  know  more 


ESSAYS  AND   LETTERS.  375 

of  the  Scripture  than  you  do."  And  he  lived  to  make 
his  prophecy  good.  He  soon  afterwards  commenced 
the  work  of  translating  the  Scriptures,  as  Wickliffe's 
translation  was  almost  unintelligible  to  the  common 
people  at  that  time,  owing  to  the  changes  in  the  lan- 
guage. In  1525  the  New  Testament  was  completed. 
Tyndale  was  compelled  to  go  to  Germany  to  have  it 
printed,  as  any  attempt  at  that  time  in  England  to 
circulate  the  Scriptures  would  have  been  punished  with 
martyrdom.  In  Germany  he  commenced  a  translation 
of  the  old  Testament,  and  had  proceeded  as  far  as  to  the 
end  of  Chronicles  when  he  was  apprehended  and  put 
to  death.  John  Rogers,  an  Englishman  residing  in 
Antwerp  (the  same  who  afterwards  suffered  martyr- 
dom under  Queen  Mary),  undertook  the  work  of  revis- 
ing and  printing  the  translation.  When  he  had 
completed  Tyndale 's  work— the  whole  of  the  New 
Testament  and  the  Old  as  far  as  Chronicles— he 
depended  on  Coverdale's  translation  for  the  remainder, 
which  had  been  printed  but  not  yet  published.  Cover- 
dale  had  made  free  use  of  Tyndale's  translation  as  far 
as  it  had  been  published,  in  making  his  own,  and 
Rogers  procured  the  use  of  his  (Coverdale's)  in  those 
portions  of  the  Bible  which  Tyndale  had  not  translated. 
Coverdale's  version  was  published  in  England  about 
the  same  time  that  Tyndale's  was,  but  never  obtained 
the  public  favor. 

In  1537  Rogers  completed  his  work,  and  some 
London  publishers  had  the  good  fortune  to  get  the 
royal  license  for  its  dissemination  in  England.  But 
Tyn'dale,  its  author,  had  in  the  previous  October 
suffered  martyrdom  for  his  glorious  work.  His  Bible, 
however,  thus  introduced  into  England,  not  under  his 


376  MISCELLANEOUS   WRITINGS. 

name,  but  tinder  the  fictitious  name  of  Thomas 
Matthew,  met  an  auspicious  reception,  and  became 
widely  circulated.  It  has  always  gone  by  the  fictitious 
name  of  Matthew's  Bible,  and  hence  the  true  author 
has  never  received  the  credit  due  for  such  a  noble 
legacy  to  the  people  and  language  of  England.  This 
is  the  Bible  which,  with  slight  revision,  we  have  at 
this  day,  and  which  is  generally  accredited  to  King 
James's  translators.  Their  work,  however,  though  a 
good  work  (as  we  shall  see  hereafter)  was  a  mere 
work  of  revision,  and  not  translation,  and  the  great 
body  of  the  English  Bible,  as  they  left  it,  was  given  to 
the  English  nation  by  William  Tyndale,  and  in  a  subor- 
dinate degree,  by  Coverdale,  it  is  but  just  to  assign  to 
them  the  credit  of  the  translation.  Other  nations  had 
the  Bible  translated  into  their  languages  at  nearly  the 
same  time.  A  German  translation  was  made  in  1480  ; 
it  was  not,  however,  a  perfect  one,  and  in  1532  their 
present  translation,  made  by  Luther,  appeared.  A 
Dutch  translation  was  made  in  1526,  a  Lower  Saxon 
in  1533  and  a  German  Swiss  in  1529. 

At  the  conclusion  of  the  address  the  audience 
requested  that  the  history  of  the  translations  be  con- 
tinued at  an  early  day.  Mr.  Bradley  consenting, 
Thursday,  the  9th  of  January,  was  appointed. 


ENGLISH  TRANSLATION  OF  THE  BIBLE  (II). 

The  history  of  this  translation  by  Christopher 
Anderson  is  exhaustive  of  the  subject,  except  in  regard 
to  the  sources  of  the  various  revisions.  A  critical 


ESSAYS   AND   LETTERS.  377 

examination  of  the  original  translation  and  of  each 
revision  thereof,  compared  with  the  critical  apparatus 
which  each  editor  had  to  aid  him,  would  reveal  not 
only  the  progress  made  at  each  step,  but  the  sources 
from  which  every  improvement  or  change  was  derived. 
The  article  "Version  Authorized,"  in  Smith's  Bible 
Dictionary,  is  also  very  full  on  the  subject. 

The  Anglo-Saxons  had  several  different  versions 
of  the  Gospels,  the  Psalms,  some  of  the  Epistles  and 
other  parts  of  the  Bible.  But  no  trace  has  been  found 
of  a  version  of  the  entire  Bible.  These  versions  were 
made  from  the  Latin  Vulgate,  which  was  then  the 
only  text  in  general  use  in  Western  Europe,  and  were 
made  from  the  ninth  to  the  twelfth  centuries. 

John  Wickliffe  completed  an  English  version  of  the 
Vulgate  New  Testament  in  1360,  and  with  the  aid  of 
Nicholas  de  Hereford  and  Richard  Purvey  completed 
the  entire  Bible  in  1380  or  1382.  Wickliffe  died  1384. 
A  large  number  of  the  Wickliffe  Bibles  are  extant  in 
manuscript. 


MODERN   ENGLISH   VERSIONS. 

1.  Tyndale's 

New  Testament,  1526. 

Pentateuch,  1531. 

Book  of  Jonah. 

Historical  Books  O.    T.   not   published   but 

used  by  John  Rogers  in  Matthew's  Bible. 

1537. 

2.  Coverdale's,  1535,  printed  (i.  e.,  dated)  but  not 
published  until  1537. 


378  MISCELLANEOUS  WRITINGS. 

3.  Matthew's,  1537. .,  Edited  by  John  Rogers  under 
the  fictitious  name  of  Thomas  Matthew,  and  composed 
of  Tyndale's   as  far    as  translated  by  him,  and  the 
balance  of  Coverdale's,    all    somewhat    revised    and 
corrected. 

4.  Taverner's,  1539. 

5.  Cranmer's,  1540. 

6.  Genevan,  1557,  1560. 

7.  Bishop's,  1568. 

8.  Thomson's  New  Testament,  1576. 
SA.  Rheimish  New  Testament,  1587. 
SB.  Douay  Bible,  1609. 

9.  Authorized  Version,  1611. 


JUDGE  BRADLEY  ON  THE  OLD  ENGLISH  BIBLE. 

[The  Evangelist,  Thursday,  May  3, 1883.] 

[Mr.  Justice  Bradley,  of  the  Supreme  Court  of  the 
United  States,  is  not  only  a  distinguished  Judge  but 
an  eminent  scholar  as  well.  Master  of  several  lan- 
guages, his  familiarity  with  them  has  taught  him  to 
appreciate  the  more  the  good  old  Saxon,  which  is  the 
basis  of  our  mother  tongue.  This  leads  him  to  prize 
and  cherish  the  old  English  Bible  without  any  of  the 
modern  "  revisions  "  or  improvements.  The  following, 
which  a  friend  has  kindly  obtained  for  us,  with  per- 
mission to  use  it,  was  written  years  ago,  before  the 
recent  Revision  was  entered  upon,  and  had  reference 
to  some  versions  prepared  by  individuals,  which  had 
a  very  limited  circulation.  The  observations,  there- 
fore, were  not  intended  to  apply  to  the  recent  Revision 
prepared  by  the  best  Biblical  scholars  in  England  and 


ESSAYS  AND   LETTERS.  379 

America.  No  one  would  appreciate  more  highly  the 
results  of  modern  learning  which  might  throw  light 
on  the  word  of  God.  And  yet  the  bearing  of  what 
is  said  here  would  be  against  any  attempt  at  revisions  ; 
and  without  his  positive  statement  on  this  point,  we 
are  inclined  to  think  that  if  he  were  asked  to  form  his 
opinion  as  a  Judge  between  the  two  versions— that  of 
King  James  and  the  late  Revision— he  would  say  :  The 
old  is  the  better.— Ed.  Ev.} 

The  English  Bible  taken  altogether  is  a  book  which 
the  English-speaking  race  should  love  and  reverence. 
It  is  certainly  inspired  now  if  it  were  not  at  first. 
Spiritual  meanings,  hallowed  associations,  sacred 
memories,  lurk  on  every  page,  in  every  passage.  That 
which  was  coarse  has  become  chaste ;  that  which  had 
little  meaning  has  become  big  with  meaning;  that 
which  was  commonplace  has  become  divine.  It  is 
pervaded  with  the  odor  of  human  sanctity,  like  a 
garment  enclosed  in  a  chest  of  sandal-wood.  It  is 
invested  with  a  halo  produced  by  reverential  regard, 
which  ever  reacts  upon  itself,  transfiguring  that  which 
it  gazes  upon.  Generation  after  generation  has 
brought  to  it  each  its  contributions  of  inspired  mean- 
ings, and  it  is  consecrated  by  the  divinest  yearnings  of 
humanity.  Add  to  this  its  pure  archaic  English,  the 
very  form  and  body  of  which  has  become  sacred  to 
the  national  taste  and  dear  to  the  national  pride,  and 
we  may  account,  in  some  degree,  for  the  talismanic 
effect  produced  by  this  book  of  books,  which  no  irrev- 
erent hand  should  touch  and  no  irreverent  tongue 
defame.  Properly  appreciated  and  wisely  used  it  is 
the  most  valuable  aid  and  support  to  piety  and  virtue. 


380  MISCELLANEOUS  WRITINGS. 

I  have  no  patience  with  the  constant  attempts  to 
change  the  common  version  of  the  Bible.  When  it 
expresses  the  sense  of  the  original,  why  change  it  ?  Is 
it  to  avoid  archaisms  ?  I  like  them.  They  are  gener- 
ally pure  old  English,  which  it  is  well  to  preserve.  In 
addition  to  its  intrinsic  beauty,  it  serves  as  an  intro- 
duction to  our  earlier  literature.  Besides,  we  become 
attached  to  words  that  have  become  sanctified  by 
long  use.  They  often  have  associations  for  us  that  no 
affected  elegance  of  diction  can  supply.  For  example, 
Noyse  and  others  use  the  auxiliary  verb  will  for  shall. 
"  Blessed  are  the  pure  in  heart  for  they  will  see  God." 
What  is  gained  by  this  change  ?  It  seems  made  for 
the  sake  of  change.  Campbell  and  Boothroyd  retain 
"shall"  but  discard  "blessed"  for  "happy,"  and  the 
former  discards  "pure"  for  "clean."  Thus,  "Happy 
the  clean  in  heart  for  they  shall  see  God."  Is  the 
sense  made  more  perspicuous  by  these  changes  ?  Not 
a  particle.  An  old  familiar  expression  is  exchanged 
for  a  new  one,  which  serves  no  better  purpose  in  any 
point  of  view.  Exactly  the  same  moral  thought  is 
conveyed  to  the  mind  as  by  the  old  version ;  and  that 
version  has  been  the  possession  of  English  readers— 
not  from  the  time  of  James,  but  from  the  time  of 
Henry  VIII,  the  time  of  Tyndale  and  Coverdale.  It 
has  been  our  inheritance  for  three  centuries  and  a  half. 
I  may  be  over-nice,  but  I  confess  that  such  verbal 
changes  in  our  sacred  and  venerable  classic  are  offen- 
sive to  my  ears. 

The  moral  lessons  of  the  Bible  relate  to  facts  in 
our  experience  and  to  phases  of  our  moral  nature. 
Our  own  consciousness  recognizes  their  application. 
Trifling  variations  of  diction  can  make  no  alteration 


ESSAYS  AND   LETTERS.  381 

in  their  substantial  sense.  That  is  determined  by  the 
real  facts  of  thought,  propensity,  life.  Some  human 
characteristic  is  the  object  of  each  uttered  formula  of 
truth  or  precept,  and  fixes  its  true  interpretation. 
Without  this  objective  basis  of  fact  for  its  application 
the  formula  would  be  meaningless.  With  it  the  mean- 
ing is  definite  and  unchangeable.  This  is  the  great 
conservative  element  which  makes  the  Bible  a  practical 
book  and  restrains  all  fanciful  expositions  of  its 
language.  Therefore  it  is,  that  even  apologues  and 
parables  go  straight  to  their  mark  and  are  rarely 
misunderstood.  Conscience,  seated  in  the  inner  recesses 
of  the  human  bosom,  is  quick  to  perceive  and  under- 
stand what  is  meant.  Some  sore  spot  of  guilt  or 
sorrow  is  instantly  touched  and  responds  to  the  rebuke 
or  the  promise.  The  facts  of  human  nature  are  the 
exponents  of  religious  teaching.  It  is  here,  and  here 
alone,  that  the  teaching  finds  its  application,  just  as 
the  definitions  of  science  find  their  true  interpretation 
in  the  things  themselves  sought  to  be  defined.  No 
fanciful  variations  of  phraseology  in  the  definition  or 
lesson  can  alter  its  substantial  significance.  When  it 
is  said,  "  Blessed  are  the  pure  in  heart,  for  they  shall 
see  God,"  we  know  as  well  what  is  meant  by  the 
annunciation  as  if  Greek  or  Syriac  were  our  vernacular 
tongue  and  we  had  heard  the  original  words  uttered 
by  the  Saviour  himself.  No  exposition  can  make  it 
clearer.  No  choice  modern  phrases  can  make  it  better 
understood.  Purity  of  heart  is  a  spiritual  fact,  which, 
like  a  straight  line,  is  always  the  same  under  every 
change  of  description,  and  the  happiness  that  springs 
from  it  is  as  aptly  suggested  by  the  word  "  blessed  "  as 
by  any  other.  It  is  a  happiness  that  has  a  moral 


382  MISCELLANEOUS  WRITINGS. 

reality,  and  is  not  modified  or  changed  by  the  choice 
of  the  words  used  to  describe  it.  The  words  we  have 
are  good  enough,  and  being  hallowed  by  long  and 
devout  use,  are  better  than  any  new-fangled  diction 
that  can  be  devised. 

This  instance  is  but  one  of  ten  thousand  to  which 
the  remarks  would  apply.  I  concur  in  changes  that 
are  necessary  to  correct  manifest  errors,  and  in 
omissions  of  spurious  readings  when  clearly  shown  to 
exist.  But  in  no  other  case  should  we  alter  or  touch  the 
venerable  fabric  of  pure,  even  though  archaic,  English 
which  we  have  so  long  possessed  in  our  standard 
version  of  the  Bible.  It  is  the  poorest  pedantry  to 
attempt  a  correction  of  either  the  language  or  the 
grammar.  Both  in  their  time  were  as  well  understood 
by  the  translators  as  they  are  by  modern  pedagogues. 


EASTER  DAY. 

April  9,  1882.  This  is  Easter  day,  and,  by  a 
coincidence  which  does  not  often  occur,  it  is  the  chron- 
ological anniversary  of  Christ's  resurrection,  which 
took  place  April  9,  A.  D.  30.  Last  Friday,  being  Good 
Friday,  was  the  like  anniversary  of  his  crucifixion. 
The  coincidence  generally  occurs  only  three  times  in  a 
century,  and  sometimes  not  so  often.  Thus,  it 
occurred  last  century  in  the  years  1719  and  1730  ;  in 
the  present  century  in  the  years  1871,  1882,  and  will 
again  in  1893,  and  in  the  next  century  it  will 
occur  in  the  years  1939  and  1950.  It  is  observable 
that  when  it  does  occur  it  is  repeated  at  intervals  of 


ESSAYS  AND   LETTERS.  383 

eleven  years— which  arises  from  the  fact  that  eleven 
years  (three  being  leap  years)  contain  4018  days, 
which  make  an  exact  number  of  weeks  and  nearly  an 
exact  number  of  lunar  months,  the  number  of  weeks 
being  574  and  the  number  of  lunar  months  being  136, 
with  a  surplus  of  one  day,  twenty  hours  and  ten 
minutes.  If,  therefore,  the  full  moon  happens  on 
Saturday,  8th  April,  Easter  day  will  be  on  the  9th. 
Eleven  years  afterward  the  full  moon  will  occur  on 
Thursday,  the  6th  April,  and  Easter  on  the  9th; 
eleven  years  after  that  full  moon  will  occur  on  Tuesday, 
the  4th  April  and  Easter  on  the  9th.  Thus  three  of 
these  instances  may  occur  successively  at  intervals  of 
eleven  years ;  but  it  would  not  occur  a  fourth  time, 
because  there  can  only  be  three  successive  eleven  year 
periods,  each  having  three  bissextile  years  ;  and  if  the 
9th  of  April  happens  on  Sunday  three  times  successively, 
yet  it  cannot  do  so  the  fourth  time. 


THE  WORLD  IS  NOT  ETERNAL. 

That  the  material  world  is  not  eternal  is  very 
clearly  proved  by  the  progressive  changes  which  it 
undergoes.  It  seems  clear  that  worlds  are  now  in  the 
process  of  formation.  Some  of  the  nebulas  at  least, 
are  agglomerating  into  revolving  spheres,  and  the 
solar  system  presents  every  indication  of  having  gone 
through  the  same  process.  The  sun  itself  and  all  the 
planets  have  passed  through  a  process  of  condensation, 
and  are  still  subject  to  that  process.  The  billions  of 
years  of  duration  through  which  the  formation  and 


384  MISCELLANEOUS   WRITINGS. 

organizing  process  has  been  going  on  may  appall  the 
mind  when  it  attempts  to  comprehend  it ;  but  were  it 
a  billion  times  longer  than  it  has  been,  it  would  still 
be  limited  duration,  and  could  constitute  no  conceiv- 
able comparison  with  eternity.  We  are  necessarily 
carried  back,  therefore,  to  a  period  when  the  matter 
of  the  Solar  Universe,  and  of  all  other  universes,  was 
in  a  gaseous,  chaotic  and  dispersed  state,  and  when 
its  revolutions,  the  effect  of  gravitation,  and  the  cause 
of  distinct  formation  into  spheres,  had  not  begun. 
And  yet  the  matter  of  these  universes,  if  endowed 
with  this  gravitating  power,  must  necessarily  have 
begun  to  move  and  to  revolve  as  soon  as  it  commenced 
to  exist.  If  it  existed  from  eternity,  its  development 
into  spheres  must  have  existed  from  eternity,  and  their 
ultimate  state  of  unchangeable  solidity  would  have 
been  reached  before  the  commencement  of  time.  But 
we  see  that  this  state  is  not  yet  reached,  and,  therefore, 
it  is  demonstrable  either  that  the  particles  of  water 
had  a  beginning,  or  that  the  gravitation  of  matter 
had  a  beginning.  But  we  cannot  separate  the  one 
from  the  other.  For  if  the  particles  themselves  are 
eternal,  and  gravity  had  a  beginning,  what  gave  it 
that  beginning  ?  The  particles  themselves  could  not 
evolve  it,  because  having  existed  eternally  without 
this  power,  they  must  have  acquired  it  by  its  being 
superinduced  from  some  cause  foreign  to  themselves  ; 
and  the  creation  of  this  power  (gravitation)  would 
be  as  fatal  to  the  idea  of  the  eternity  of  the  universe 
as  the  creation  of  the  particles  of  matter  would  be. 

It  follows,  therefore,  as  a  necessary  result,  that 
matter  cannot  be  eternal.  And  if  matter  is  no t  eternal , 
then  we  are  landed  upon  the  necessity  of  some  other 
eternal  existence  which  has  produced  matter  and  its 


ESSAYS  AND   LETTERS.  385 

laws.  For  the  human  mind  cannot  conceive  a  begin- 
ning to  duration  nor  the  absolute  non-existence  of 
some  being  from  eternity. 

The  overwhelming  law  of  our  own  nature  there- 
fore drives  us  to  the  belief,  nay,  to  the  absolute 
certainty,  of  the  existence  of  an  eternal  and  infinite 
Being  who  has  created  all  things  and  given  them  their 
laws. 

The  fact  of  progression  in  the  order  of  nature  is 
abundantly  proved  by  the  phenomena  exhibited  by  the 
planet  which  we  inhabit.  The  successive  geologic 
periods  show  the  progress  from  a  molten  metallic  mass 
on  which  no  life  or  vegetation  could  exist,  through  all 
the  stages  of  change  and  development,  the  origin  of 
vegetable  and  animal  life,  the  production  and  disap- 
pearance of  extinct  organisms,  down  to  the  earth  of 
to-day,  on  which  man  and  new  races  of  animals  find 
a  congenial  home.  Man  himself  has  passed  through 
changes  and  progressions.  The  evidences  of  his  exist- 
ence grow  fainter  and  fainter  as  we  travel  back  into 
the  past  history  of  the  earth  ;  and  after  they  begin 
to  show  themselves,  we  find  on  our  return  upon  the 
track  of  time  that  the  manifestations  of  his  culture 
and  civilization  increase  age  after  age  until  we  reach 
the  dawn  and  afterwards  the  broad  daylight  of  human 
history. 

All  that  is  revealed  to  us  in  the  universe  betokens 
constant  change  and  constant  progression.  It  is  this 
law  of  change  and  progression  on  which  is  based  the 
absolute  demonstration  that  the  visible  universe  had 
-a  beginning,  and  that  the  only  occupant  of  eternity 
and  immensity  was  and  is  and  must  be  its  Creator 
and  Governor. 

February  22d,  1883. 


386  MISCELLANEOUS   WRITINGS. 

[New  York  Evangvlist,  June  28,  1883.] 

YEAR  AND  DAY  OF  CHRIST'S  CRUCIFIXION. 


BY  HON.  JOSEPH  P.  BRADLEY,  ASSOCIATE  JUSTICE  OF  THE 
SUPREME  COURT  OF  THE  UNITED  STATES. 


The  exact  time  of  Christ's  crucifixion  may  be 
approximately  demonstrated  by  astronomical  calcula- 
tion, after  paying  due  regard  to  the  historical  data 
we  possess.  The  cardinal  conditions  required  by  these 
data  are,  first,  that  the  time  must  be  brought  within 
the  procuratorship  of  Pontius  Pilate  ;  secondly,  it  must 
be  after  the  fifteenth  year  of  the  reign  of  Tiberius,  and 
after  the  thirtieth  of  Christ's  age ;  thirdly,  it  must 
occur  on  the  15th  of  the  Jewish  month  Nisan  (or  Abib) 
and  on  the  sixth  day  of  the  week,  or  Friday. 

1.  Pilate's  procuratorship  is  fixed  as  follows : 
From  Josephus  we  learn  that  Gratus  was  appointed 
Procurator  of  Judea  by  Tiberius,  after  the  death  of 
Augustus  (which  occurred  August  19,  A.  D.  14)  and 
continued  eleven  years,  and  then  returned  to  Rome ; 
and  that  Pontius  Pilate  went  out  as  his  successor,  and 
continued  ten  years,  and  was  then  recalled,  and  started 
for  Rome,  but  before  he  arrived  Tiberius  was  dead. 
As  the  death  of  Tiberius  happened  March  16,  A.  D.  37, 
and  as  it  probably  took  Pilate  several  months  to 
make  his  preparations  and  complete  his  journey  to 
Rome  in  the  winter,  it  is  apparent  that  the  last  year 
of  his  administration  was  A.  D.  36,  and  that  his 
entire  administration  extended  from  A.  D.  26  to  A.  D. 
36  (Josephus'  Antiq.,  b.  XVIII,  c.  II,  sec.  2;  c.  IV, 
sec.  2). 


ESSAYS   AND   LETTERS.  387 

2.  Luke  in  his  Gospel,  Chap.  Ill,  says  that  the 
preaching  and  baptism  of  John  commenced  in  the 
fifteenth  year  of  Tiberius  Caesar,  Pontius  Pilate  being 
Governor  of  Judea;  and  that  Jesus  was  baptized 
beginning  to  be  about  thirty  years  of  age  ;  and  that 
immediately  afterwards  He  was  tempted,  and  then 
returned  to  Nazareth,  and  commenced  publicly  to  teach 
the  people  (Luke,  Chaps.  Ill,  IV).  As  it  is  generally 
agreed  that  Christ's  public  ministry  continued  some 
three  years,  the  crucifixion  must  have  occurred  within 
three  or  four  years  of  the  above  date. 

Now,  what  year  was  the  fifteenth  of  Tiberius  ?  and 
what  year  was  it  in  which  Jesus  began  to  be  thirty 
years  of  age  ?  The  years  of  Tiberius'  reign  were 
reckoned  from  two  different  epochs  ;  one,  his  admission 
as  joint  Emperor  with  Augustus  over  all  the  provinces 
and  armies,  which  took  place  in  the  year  12,  and  the 
other,  his  accession  to  the  entire  government  on  the 
death  of  Augustus,  which  occurred  in  the  year  14. 
The  first  of  these  would  naturally  be  used  in  Judea, 
and  the  fifteenth  from  this  epoch  would  be  the  year  26, 
the  year  in  which  Pilate's  procuratorship  commenced. 
We  are  confirmed  in  supposing  that  this  was  the  year 
meant  when  we  take  into  consideration  the  age  of 
Jesus  at  that  time.  We  know  that  he  was  born  in  the 
reign  of  Herod — probably  in  the  last  year  of  his  reign, 
because  he  is  spoken  of  as  still  "the  young  Child" 
when  he  was  brought  back  from  Egypt  on  the  death 
of  Herod  and  the  accession  of  Archelaus  (Matt,  ii,  20). 
Josephus  gives  us  the  materials  for  fixing  the  date  of 
Herod's  death.  He  tells  us  that  he  was  made  King 
by  vote  of  the  Roman  Senate,  with  the  consent  of 
Augustus,  in  the  184th  Olympiad,  when  Caius  Domitius 


388  MISCELLANEOUS   WRITINGS. 

Calvinus  was  Consul  the  second  time,  and  Caius 
Asinius  Pollio  the  first  time.  Their  Consulate  was 
in  the  year  of  Rome  714  and  B.  C.  40,  and  the  184th 
Olympiad  ended  July  1,  B.  C.  40.  Therefore,  Herod 
must  have  been  made  King  before  July  1,  B.  C.  40, 
and  he  reigned  from  that  time  thirty-seven  years ;  so 
that  he  must  have  died  B.  C.  3,  and  the  last  year  of 
his  reign  was  B.  C.  4-3  (Josephus  Antiq.,  b.  XIV,  c. 
XIV,  ss.  4,  5 :  b.  XVII,  c.  VIII,  s.  1 ;  Prideaux's  Con- 
nection under  B.  C.  40  and  B.  C.  4.  Therefore,  Christ 
entered  upon  His  thirtieth  year  in  A.  D.  26.  and  com- 
pleted it  in  A.  D.  27.  Therefore,  whether  he  was 
baptized  in  the  latter  part  of  26  or  the  beginning  of  27, 
it  would  be  correctly  said  that  He  "  began  to  be  about 
thirty  years  of  age."  It  seems  very  clear,  therefore, 
that  John's  preaching  commenced  in  the  year  26,  and 
that  Jesus  was  baptized  and  commenced  preaching  at 
the  end  of  26  or  beginning  of  27.  His  first  passover, 
after  He  commenced  His  public  ministry,  would  be 
either  that  which  took  place  in  the  spring  of  27  or  that 
which  took  place  in  the  spring  of  28.  It  is  certain 
that  the  crucifixion  could  not  have  taken  place  earlier 
than  A.  D.  28,  and  it  is  not  probable  that  it  took 
place  later  than  A.  D.  31,  unless  the  period  of  His 
public  ministry  lasted  longer  than  has  usually  been 
supposed. 

And  now  comes  in  the  astronomical  argument 
depending  on  the  question,  was  there  a  year  from  28 
to  31,  inclusive,  or  near  that  period,  in  which  the  15th 
of  Nisan  fell  on  the  sixth  day  of  the  week,  or  Friday  ? 
I  have  assumed  that  the  crucifixion  took  place  on  the 
15th  of  Nisan.  It  seems  to  me  there  can  be  no  doubt 
about  it.  The  Passover  was  to  be  killed  on  the  14th 


ESSAYS  AND   LETTERS.  389 

of  Nisan,  "  between  the  two  evenings  "  (Ex.  XII,  6)— 
/.  e.,  in  the  middle  of  the  afternoon,  as  was  always 
understood  and  practiced  by  the  Jews.  (See  Ains- 
worth's  Commentary  on  the  passage).  It  was  to  be 
eaten  the  same  evening.  This  was  also  the  first  day 
of  unleavened  bread.  "  This  day  shall  be  unto  you 
for  a  memorial,  and  ye  shall  keep  it  a  feast  to  the 
Lord  throughout  your  generations.  Seven  days  shall 
you  eat  unleavened  bread  ;  even  the  first  day  ye  shall 
put  away  leaven  out  of  your  houses."  (Ex.  XII, 
14r-15).  Matthew  tells  us;  "Now  the  first  day  of 
the  feast  of  the  Unleavened  Bread  the  disciples  came  to 
Jesus  saying  unto  Him,  Where  wilt  Thou  that  we 
prepare  for  Thee  to  eat  the  passover?"  etc.  (Matt. 
XXVI,  17).  Luke  says:  "Then  came  the  day  of 
unleavened  bread,  when  the  Passover  must  be  killed, 
and  He  sent  Peter  and  John,  saying,  Go  and  prepare 
us  the  Passover,  that  we  may  eat,"  etc.  (Luke  XXII, 
7-8).  Then  followed  the  Last  Supper  and  Gethsemane, 
and  the  next  morning  (the  15th  of  Nisan,  of  course) 
Jesus  was  condemned  and  crucified.  I  shall  assume 
that  that  was  the  day,  without  entering  into  the 
controversy  about  the  apparent  discrepancy  between 
John  and  the  other  Evalgelists.  Of  course  the  15th 
of  Nisan  was  on  the  same  day  of  the  week  as  the  1st 
of  Nisan. 

Again,  I  will  assume  that  the  day  was  the  sixth 
day  of  the  week,  or  Friday— the  day  preceding  the 
Sabbath,  the  preparation  day.  That  is  almost  the 
universal  understanding  of  Christendom.  There  are 
"some," it  is  true,  who  contend  for  some  other  day  ;  just 
as  there  are  some  who  say  that  Shakespeare  did  not 
write  the  plays  that  go  by  his  name.  But  I  will  not 
stop  to  argue  the  point. 


390  MISCELLANEOUS   WRITINGS. 

We  are  to  find,  then,  ay%ear,  from  26  to  31  inclusive, 
in  which  the  15th,  and,  of  course,  the  1st,  Nisan  fell 
on  Friday. 

The  Jewish  year  was  a  lunar  year,  consisting  of 
twelve,  and  sometimes  thirteen,  lunar  months,  and 
Nisan  was  the  first  month  of  the  ecclesiastical  year. 
It  will  be  necessary  to  fix  the  true  commencement  of 
this  month  for  the  years  in  question. 

As  bearing  on  this  subject,  the  learned  Selden, 
brimful  of  ancient  learning  of  every  kind,  in  his  Disser- 
tation on  the  Jewish  year,  tells  us  several  important 
things— things  that  are  told  by  many  others,  it  is  true, 
but  by  no  one  of  higher  authority.  We  learn  from 
him,  first,  that  the  new  moon,  by  which  the  com- 
mencement of  the  Jewish  month  was  fixed,  was  the 
visible  new  moon,  or  actual  phasis,  and  not  the  astro- 
nomical or  mathematical  new  moon ;  secondly,  that 
the  moon  is  not  visible  until  after  it  has  passed  the 
sun  at  least  nine  degrees,  or  about  eighteen  hours, 
and  under  some  conditions  not  so  soon  ;  thirdly,  that 
the  Jewish  year  was  made  to  keep  approximately 
abreast  the  natural  year  by  occasionally  adding 
an  additional  month— Ye  Adar— to  the  outgoing  year ; 
fourthly,  that  the  first  month,  Nisan,  must  come  in 
the  spring,  so  as  to  make  the  first  ripening  grain, 
or  first  fruits  (according  to  the  course  of  vegetation 
in  Judea)  available  for  the  feast  of  the  Passover; 
fifthly,  that  the  month  commencing  with  the  new 
moon  nearest  to  the  vernal  equinox  was  normally 
the  first  month,  or  Nisan ;  for  it  was  a  rule,  derived 
from  old  tradition,  that  the  full  moon  of  the  first  month 
must  never  occur  before,  but  might  occur  on  or  after 


ESSAYS   AND   LETTERS.  391 

the  vernal  equinox ;  and  if  it  would  otherwise  occur 
before,  an  intercalary  month  must  be  inserted,  so  as  to 
lengthen  the  outgoing  year;  sixthly,  that  if  vegeta- 
tion was  very  late,  or  the  spring  backward,  so  as  to 
prevent  the  grain  from  ripening  or  to  make  the  roads 
leading  to  the  city  impassable,  the  Sanhedrim  had  the 
power  to  insert  an  intercalary  month  even  when  it 
was  not  regularly  required  by  the  time  of  the  equinox. 
These  things  render  the  Jewish  year  somewhat  less 
certain  than  the  Greek  year,  which  was  governed  by 
the  fixed  cycle  of  nineteen  years  invented  by  Meton. 
Nevertheless,  as  this  cycle  brought  the  beginning  of 
the  year  as  it  should  be,  so  far  as  the  equinox  was 
concerned,  it  was  probably  rarely  departed  from. 
Dean  Prideaux  is  of  an  opinion  that  the  Jews  in  the 
time  of  our  Saviour,  observed  the  Metonic  cycle,  or 
a  larger  one  of  eighty-four  years,  which  included  it, 
and  did  not  differ  from  it  during  the  first  forty  years 
of  the  first  century  (Prideaux's,  Anno.  162  B.  C.). 

Now,  taking  the  roman  calendar  as  the  standard  of 
comparison,  and  the  longitude  of  Jerusalem  (35  deg. 
18  min.  30  sec.  E.)  as  the  point  for  regulating  time, 
and  midnight  as  the  commencement  of  the  day,  it  is 
found  by  calculation,  based  on  the  ordinary  astro- 
nomical tables,  that  the  vernal  equinox  in  the  former 
half  of  the  first  century  occurred  in  the  afternoon  or 
evening  of  22d  March.  Therefore,  the  full  moon  of 
Nisan  ought  not  to  happen  before  that  day,  and  the 
preceding  full  moon  ought  not  to  happen  before  the 
7th  of  March.  Therefore,  the  new  moon,  marking 
"  the  1st  of  Nisan,  must  happen  between  the  7th  of 
March  and  the  7th  of  April. 


392  MISCELLANEOUS  WRITINGS. 

Next  it  is  found  by  j^ike  calculations,  that  the 
astronomical  new  moons  nearest  to  the  vernal  equinox 
for  the  years  27  to  35,  inclusive,  were  respectively  as 
follows : 

A.  D.  27.    Wednesday,  March  26,  at  7  h.,  47  m.  A.  M. 

28.  Sunday,  March  14,  at  2  h.,  12  m.  P.  M. 

29.  Saturday,  April  2,  at  7  h.,  32  m.  A.  M. 

30.  Wednesday,  March  22,  at  7  h.,  51  m.  A.  M. 

31.  Sunday,  March  11,  at  0  h.,  26  m.  P.  M. 

32.  Saturday,  March  29,  at  10  h.,  2  m.  A.  M. 

33.  Thursday,  March  19,  at  0  h.,  38  m.  A.  M. 

34.  Monday,  March  8,  at  5  h.,  24  m.  P.  M. 

35.  Sunday,  March  27,  at  5  h.,  53  m.  P.  M. 
From  this  table  it  is  apparent  that  in  A.  D.  27  the 

new  moon  which  occurred  on  the  26th  March  was 
first  visible  (according  to  Selden's  rule)  on  Thursday 
evening,  March  27th,  when  the  first  of  Nisan  com- 
menced and  continued  until  sunset  of  Friday  evening, 
March  28th.  For  our  purpose  the  first  of  Nisan  was 
Friday,  March  28th.  And  in  like  manner,  attending 
to  the  respective  times  of  new  moon  in  the  other  years 
contained  in  the  table,  it  is  equally  apparent  that  the 
1st  of  Nisan  occurred  in  A.  D.  28,  Tuesday,  March  16th  ; 
in  A.  D.  29,  Monday,  April  4th,  in  A.  D.  30,  Friday, 
March  24th ;  in  A.  D.  31,  Tuesday,  March  13th ;  in 
A.  D.  32,  Monday,  March  31st ;  in  A.  D.  33,  either 
Friday,  March  20th,  or  Saturday,  March  21st  (un- 
certain which) ;  in  A.  D.  34,  Wednesday,  March  10th 
and  in  A.  D.  35,  Tuesday,  March  29th.  The  moons 
here  taken  for  the  month  Nisan  exactly  agree  with  the 
cycle  before  referred  to. 

Thus  we  see  that  there  were  only  three  years  from 
A.  D.  27  to  A.  D.  35  inclusive,  in  which  the  first  of 


ESSAYS  AND   LETTERS.  393 

Nisan,  and  consequently  the  fifteenth  of  Nisan,  hap- 
pened on  Friday ;  and  these  were  A.  D.  27,  30  and  33, 
the  last  of  which  is  very  doubtful.  But  we  have  seen 
that  the  Crucifixion  could  not  have  happened  before 
A.  D.  28,  and  probably  not  later  than  A.  D.  31. 
Therefore,  the  year  30  is  the  only  one  which  satisfies 
all  the  conditions  of  the  problem;  it  does  satisfy 
them,  because  it  gives  opportunity  for  Jesus  to  teach 
publicly  for  about  three  years,  and  to  attend  three 
Passovers  during  his  ministry,  or  four,  according  as 
it  commenced  before  or  after  April,  A.  D.  27. 

Now,  since  in  A.  D.  30,  the  first  of  Nisan  fell  on 
Friday,  the  24th  of  March,  the  15th  fell  on  Friday, 
the  7th  of  April,  which,  therefore,  was  the  day  of  the 
Crucifixion. 

This  conclusion  is  adopted  by  the  majority  of 
writers  of  authority,  amongst  others  by  Dr.  William 
Thompson,  in  the  article  "Jesus  Christ"  in  Smith's 
Bible  Dictionary— an  article  prepared  with  much  care 
and  learning.  Some  years  ago  I  arrived  at  a  different 
conclusion,  in  favor  of  the  year  33 ;  but  whilst  it  is 
very  doubtful  whether  the  15th  of  Nisan  fell  on  Friday 
of  that  year,  it  does  not  agree  with  Christ's  age  and 
ministry.  I  was  misled  by  overlooking  the  double 
reckoning  of  the  years  of  Tiberius. 


394  MISCELLANEOUS  WRITINGS. 

[New  York  Evangelist^  October  18,  1883.] 

THE  DATE  OF  THE  CRUCIFIXION. 

BY   HON.  JOSEPH   P.   BRADLEY,    ASSOCIATE  JUSTICE   OF 
THE   SUPREME   COURT  OF  THE   UNITED  STATES. 

MR.  EDITOR  :— Will  you  please  insert  the  following 
correction  of  my  article,  published  in  your  paper  on 
the  28th  of  June  last,  on  the  date  of  Christ's  Cruci- 
fixion ?  On  re-examining  my  calculations  of  the  time 
of  New  Moon  in  March  and  April,  A.  D.  27-35,  to  as- 
certain the  first  Nisan  of  these  years,  I  find  that  I 
committed  a  slight  error  in  not  adjusting  astronomi- 
cal time  (which  begins  at  12  noon)  to  civil  time,  by 
adding  12  hours  in  each  case,  as  I  should  have  done. 
This  would  make  the  true  time  of  New  Moon  for  the 
several  years  twelve  hours  later,  as  follows  : 

A.  D.  27.  Wednesday,  March  26,  at  7  h.,  47  m.  P.  M. 

28.  Monday,  March  15,  at  2  h.,  12  m.  A.  M. 

29.  Saturday,  April  2,  at  7  h.,  32  m.  P.  M. 

30.  Wednesday,  March  22,  at  7  h.,  51  m.  P.  M. 

31.  Monday,  March  12,  at  0  h.,  26  m.  A.  M. 

32.  Saturday,  March  29,  at  10  h.,  3  m.  P.  M. 

33.  Thursday,  March  19,  at  0  h.,  38  m.  P.  M. 

34.  Tuesday,  March  9,  at  5  h.,  24  m.  A.  M. 

35.  Monday,  March  28,  at  5  h.,  53  m.  A.  M. 

This  correction  does  not  alter  the  result,  except  to 
make  it  certain  that  the  first  of  Nisan  (and  conse- 
quently the  15th)  could  not  have  happened  on  Friday, 
in  the  year  33,  which  was  before  stated  as  uncertain  ; 
so  that  the  years  27  and  30  were  the  only  years  in 
Pilate's  time  in  which  the  15th  of  Nisan  fell  on  Friday. 
I  assume  now,  as  I  did  then,  that  the  moon  must  be 
at  least  eighteen  hours  old  before  it  can  be  seen  by  the 
naked  eye. 


ESSAYS  AND   LETTERS.  395 

[New  York  Evangelist,  November  1,  1883.] 

DAY  OF  THE  CRUCIFIXION. 

BY   HON.  JOSEPH   P.    BRADLEY,    ASSOCIATE  JUSTICE   OP 
THE  SUPREME  COURT  OF  THE  UNITED  STATES  : 

MR.  EDITOR  : — I  am  constantly  receiving  newspaper 
articles  to  prove  that  the  Crucifixion  took  place  on 
Thursday,  the  14th  of  Nisan  instead  of  Friday,  the 
15th,  and  a  challenge  to  discuss  the  subject.  But  I 
have  neither  the  time  nor  the  inclination  for  any  con- 
troversy on  the  point.  I  assume  that  it  occurred  on 
Friday  the  15th,  in  deference  to  the  almost  unanimous 
traditions  of  the  Church  (on  which  the  fast  of  Good 
Friday  is  founded),  and  on  what  I  conceive  to  be  the 
plain  meaning  of  the  Gospel  account.  But  it  is  in- 
different to  me  which  theory  is  adopted.  It  is  as  true 
of  the  one  as  the  other,  that  (leaving  out  the  year  27, 
which  is  inadmissible  on  historical  grounds)  there  was 
only  one  year  in  Pilate's  administration  in  which  the 
event  could  occur,  and  that  was  the  year  30,  for  it  is 
as  true  that  in  that  year  only  the  14th  of  Nisan  fell 
on  Thursday,  as  that  the  15th  fell  on  Friday.  The 
astronomical  argument  is  equally  demonstrative  of 
both  hypotheses.  I  entered  into  no  argument  of  the 
subject  and  shall  enter  into  none.  Those  who  are 
convinced  that  the  day  was  Thursday  the  14th,  are 
entirely  welcome  to  their  opinion  as  far  as  I  am  con- 
cerned. If  they  could  prove  that  it  was  Wednesday 
the  13th,  it  would  be  equally  satisfactory  to  me. 
What  I  attempted  to  show  was  that  according  to  the 
Jewish  Calendar,  as  regulated  by  the  New  Moons  and 
the  Equinox,  there  was  a  year  in  Pilate's  administra- 
tion, consistent  with  all  the  historical  dates,  in  which 


396  MISCELLANEOUS   WRITINGS. 

the  15th  of  Nisan  fell  on  Friday,  the  day  commonly 
understood  as  that  on  which  Christ  was  crucified,  and 
that  year  was  A.  D.  30.  This  I  think  was  proven  to 
a  demonstration.  If  this  position  is  established,  it 
follows  as  a  corollary,  that  in  the  same  year  the  14th 
of  Nisan  fell  on  Thursday.  My  object  in  making  use 
of  astronomical  data,  was  to  bring  the  Jewish  Calen- 
dar and  the  succession  of  weeks  into  co-relation  with 
the  Roman  Calendar  within  the  period  in  which  the 
Crucifixion  could  possibly  have  taken  place.  That  co- 
relation  is  independent  of  any  theories  as  to  the  parti- 
cular day  on  which  the  event  occurred.  I  do  not 
think  that  any  writer  has  attempted  what  seemed  to 
me  to  be  a  very  necessary  work— indeed  the  grand 
work  of  all  theories  on  the  subject,  namely,  the  con- 
struction of  a  comparative  calendar  for  the  periods 
embracing  the  possible  epoch  of  the  Crucifixion,  and 
an  explanation  of  the  principles  on  which  such  a 
Calendar  is  to  be  constructed.  Having  this  basis  and 
ground  work  to  go  upon,  any  number  of  theories  may 
be  built  upon,  but  no  theory  is  of  the  slightest  value 
which  does  not  conform  to  it,  as  some  which  I  have 
seen  do  not. 

From  the  data  already  given  in  my  previous  com- 
munications such  a  Calendar  for  the  middle  of  Nisan 
in  each  of  the  years  27-35  can  easily  be  constructed  ; 
but  for  the  convenience  of  those  who  are  not  familiar 
with  such  things,  I  give  it  below  in  proper  form,  from 
which  it  will  be  seen  that  those  persons  who  maintain 
that  Crucifixion  occurred  on  the  14th  of  Nisan,  may 
still  place  it  on  Friday  by  adopting  the  year  33  in- 
stead of  30,  as  the  year  of  the  Crucifixion. 

This  would,  however,  postpone  that  commence- 


ESSAYS  AND   LETTERS. 


397 


ment  of  Christ's  ministry  to  a  date  which  would  not 
agree  with  His  age  at  that  time,  as  stated  by  Luke, 
namely,  that  He  "began  to  be  about  30  years  of  age," 
though  it  might  agree  approximately  with  the  "fif- 
teenth year  of  the  reign  of  Tiberius  Caesar"  (the  other 
date  mentioned  by  Luke),  by  counting  the  years  of 
that  reign  from  the  death  of  Augustus. 

COMPARATIVE  CALENDAR  FOR  13-17  NISAN,    A.  D.    27-35. 

[The  Hebrew  days  commence  at  sunset,  preceding 
the  Roman  at  midnight.] 


A.  D.  27. 

A.  D.  32. 

Nisan  13 

Wednesday, 

April  9 

Nisan  13 

Saturday, 

April  12 

H 

Thursday, 

"     30 

M 

Sunday, 

"     13 

'5 

Friday, 

"     II 

IS 

Monday, 

"     H 

16 

Saturday, 

"      12 

16 

Tuesday, 

"     15 

17 

Sunday, 

"      13 

J7 

Wednesday, 

"     16 

A.  D.  28. 

A.  D.  33. 

Nisan  13 

Monday, 

March  29 

Nisan  13 

Thursday, 

April  2 

H 

Tuesday, 

"     30 

H 

Friday, 

"      3 

15 

Wednesday, 

"     31 

15 

Saturday, 

"      4 

16 

Thursday, 

April  I 

16 

Sunday, 

"      5 

17 

Friday, 

2 

17 

Monday, 

"      6 

A.  D.  29. 

A.  D.  34. 

Nisan  13 

Saturday, 

April  16 

Nisan  13 

Tuesday, 

March  23 

14 

Sunday, 

"     17 

H 

Wednesday, 

"     24 

15 

Monday, 

"     18 

15 

Thursday, 

"     25 

16 

Tuesday, 

"     19 

16 

Friday, 

"     26 

17 

Wednesday, 

"      20 

17 

Saturday, 

-      27 

A.  D.  30. 

A.  D.  35. 

Nisan  13 

Wednesday, 

Aprils 

Nisan  13 

Monday, 

April  1  1 

,14 

Thursday, 

"    6 

14 

Tuesday, 

"      12 

'5 

Friday, 

"     7 

IS 

Wednesday, 

"      13 

16 

Saturday, 

"    8 

16 

Thursday, 

"      14 

17 

Sunday, 

"    9 

17 

Friday, 

'       '5 

398 


MISCELLANEOUS    WRITINGS. 


A.  D.  31.  A.  D.  36. 

Nisan  13    Sunday,         March  25  '•  Nisan  13  Saturday,       March  31 

14  Monday,              "26                14  Sunday.              April  i 

15  Tuesday,             "27                15  Monday,                "    2 

16  Wednesday,        "      28                16  Tuesday,                "     3 

17  Thursday,           "     29                17  Wednesday,          "     4 


INSPIRATION. 

PROPHESYING— "Speaking  by  the  Spirit  of  God."  (I  Corinth,  c.  T!T  ; 
c.  xii:3.)  Teaching  of  the  XII  Apostles,  c.  xi. 

"SPEAKING  IN  THE  SPIRIT." 

We  can  well  imagine  that  in  the  early  Christian 
Societies  of  Asia  Minor,  Greece,  and  even  Italy,  the 
mystic  doctrines  of  Christianity,  combined  with  the 
principles  of  unselfishness  and  high  morality  and 
charity  taught  as  a  part  of  the  new  system  must 
have  had  a  profound  effect  upon  the  souls  of  those 
impassionable  people,  and  that  in  their  religious  as- 
semblies extatic  conditions  of  the  mind  should  have 
often  supervened,  as  indeed,  is  witnessed  in  our  own 
times,  amongst  certain  classes  of  religionists.  Persons 
thus  possessed  with  extatic  feeling  would  naturally 
indulge  in  prophetic  deliverances,  more  or  less,  elevated 
and  captivating— as  the  subject  of  the  possession 
was  well  or  only  partially  instructed,  and  imbued  with 
high  and  ennobling  spiritual  convictions.  Such  per- 
sons would  be  regarded  as  "prophesying  in  the  spirit" 
and  under  proper  restraints,  their  influence  would 
greatly  redound  to  the  edification  of  the  church  and  to 
the  impression  of  those  not  yet  connected  with  it. 
This  class  of  persons  had  become  well  defined  in  the 
Apostolic  age,  as  may  be  gathered  from  the  chapters 


ESSAYS  AND   LETTERS.  399 

referred  to.  They  were  still  prevalent  in  the  second 
century  as  we  learn  from  the  Teaching  of  the  XII 
Apostles,  lately  discovered  by  the  Metropolitan 
Bryennios. 

Were  not  the  ancient  prophets  gifted  by  a  like  in- 
spiration ?  No  one  acquainted  with  the  manifesta- 
tions of  the  human  mind  in  religious,  and  even  in 
poetical  directions,  can  fail  to  have  observed  that  an 
illuminated  and  highly  susceptible  soul  is  capable  of 
great  reaches  of  spiritual  intuition  and  inspired  sub- 
limity which  far  outstrip  the  ordinary  operations  of 
the  human  understanding.  Is  not  this  inspiration? 
Inspiration  par  excellence  ?  When  the  mind  is  in  this 
condition  it  is  less  affected  by  sordid  and  worldly 
motives  and  sees,  as  is  seen  on  a  death-bed,  all  spirit- 
ual things  in  a  clear  and  steady  light.  The  results  of 
a  life  of  reading,  study,  observation  and  reflection, 
produce  a  capacity  of  conceiving  truth  in  its  essence, 
morality  in  its  principles,  religion  in  its  highest  efful- 
gence—which capacity  may  be  brought  into  activity 
by  an  elevation  of  mind  induced  by  temporary  enthu- 
siasm, and  extatic  feeling.  This  inspiration  is  seen  in 
all  branches  of  human  thought.  In  the  science  of  law 
the  responses  of  a  Papinian  are  an  illustration  of  it  in 
a  certain  degree.  * 

April  13,  1890. 


400  MISCELLANEOUS  WRITINGS. 

LETTER  TO.  AMZI  DODD. 

January  23,  1891. 

DEAR  AMZI  :  Yours  received,  with  the  editorial  on 
the  Transubstantiation  controversy— which  is  very 
good  and  just.  Our  Puritan  prejudices  against  Roman- 
ism are  so  strong  that  we  are  apt  to  forget  that  it  was 
the  only  form  of  Christianity  in  the  West  (with  a  few 
exceptional  protests)  for  twelve  hundred  years. 

As  to  supernaturalism,  there  are  only  three  forms 
of  belief— three  distinct  theories  on  the  subject,  those  of 
1.  A  personal  God.  Creator  of,  but  distinct  from, 
the  World  or  Universe,  exercising  a  superintending  care 
over  it,  with  occasional  manifestations  (for  moral 
purposes)  of  miraculous  interference  with  the  general 
laws  of  nature. 

2.  Such  a  Divine  Creator,  who  has  implanted  His 
laws  of  physical  and  spiritual  being  in  the  system  of 
things  created,  and  leaves  them  to  their  own  opera- 
tion without  supernatural  interference. 

3.  Pantheism,  which  affirms  a  Divine  Being  whose 
only  manifestation  is  in  the  Laws  of  Nature,  productive 
of  all  the  phenomena  of  the  World  or  Universe,  as  its 
Soul  or  formative  principle  ;  in  other  words,  that  the 
World  is  God.     Atheism  is  but  another  form  of  this 
theory,  affirming  that  Nature  alone,  or  an  unconscious 
omnipotent  force,  with  fixed  eternal  laws,  is  its  own 
cause,  and  that  of  all  phenomena. 

Christianity,  as  an  institutive  religion,  adheres  to 
the  first  theory;  as  a  purely  spiritual  religion,  it 
admits  also  the  second. 

Yours  sincerely, 

J.  P.  B. 


ESSAYS   AND   LETTERS.  401 

INERRANT  OR  INFALLIBLE  BIBLE. 

In  a  letter  to  Amzi  Dodd,  who  inquired  as  to  the 
distinction  between  an  inerrant  Bible  and  an  infallible 
Bible,  taken  in  some  of  the  debates  in  the  Presby- 
terian General  Assembly  in  discussing  the  Briggs  case, 
I  said  that  the  distinction  was  an  arbitrary  one,  prob- 
ably to  designate  the  two  great  theories  of  inspiration, 
the  Theophrastic  and  the  spiritual,  the  former  being  that 
every  word  of  Scripture  was  inspired  ;  the  latter,  that 
sacred  writers  were  only  inspired  with  spiritual  truth, 
and  used  their  own  words  and  illustrations  to  express 
it,  tinged  by  their  environment.  The  inspiration  of 
each  word  could  only  refer  to  the  original  Hebrew  and 
Greek,  and  not  to  versions  in  the  other  languages,  and 
the  original  texts  were  liable  to  errors  in  transcription 
as  well  as  in  translation,  so  nothing  was  gained  by 
verbal  inspiration  unless  we  suppose  that  the  copyists 
as  well  as  translators  were  also  inspired.  He  who 
inspired  the  letter  (if  it  was  so  inspired)  implanted 
the  principle  of  lingual  diversity  in  the  different  tribes 
of  men  and  defeated  His  own  object.  Jerome,  the 
greatest  translator  that  ever  lived,  whose  attention 
must  have  been  frequently  given  to  the  subject,  said 
that  "  Inspiratio  non  constat  in  verbo  sed  in  sensu." 
But  I  take  little  interest  in  the  discussion,  my  views 
on  the  subject  having  been  long  settled  and  fixed. 
According  to  my  view,  the  manner  of  revelation  may 
be  expressed  as  follows  : 

The  Spirit  of  God  moves  upon  the  ocean  of  human 
thouglit,  ever  evolving  light  and  truth,  which  con- 
creted in  words  of  immortal  power,  becomes  stereo- 
typed upon  the  consciousness  of  the  nations,  consecrated 


402  MISCELLANEOUS   WRITINGS. 

by  antiquity  into  the  forms  of  sacred  learning,  and 
hallowed  by  all  holy  and  religious  associations.  (End 
of  letter.) 

This  view  supposes  that  the  inspiration  of  the 
Creator  never  ceases.  The  soul  of  man,  whenever 
created,  whether  at  conception  or  birth,  or  at  a  distant 
past,  proceeds  from  the  Divine  Spirit,  the  fountain  of 
all  life  and  intelligence,  and  derives  all  its  powers  and 
capabilities  from  that  source.  Its  spiritual  knowledge, 
developed  much  more  in  some  than  in  others,  comes 
gradually  to  be  expressed  in  golden  sentences  which 
address  themselves  to  the  universal  consciousness  and 
acquire  general  recognition  and  belief. 

June,  1891. 


SERMONS. 

A  series  of  interesting  sermons  might  be  written 
upon  texts  of  sacred  writ,  which  have  a  suggestive 
significance  or  a  far-reaching  application.  Thus  : 

"  One  day  is,  with  the  Lord,  as  a  thousand  years, 
and  a  thousand  years  as  one  day."  (II  Pet.  3-8.) 

This  thought  receives  a  wonderful  illustration  in 
considering  the  immense  periods  of  geological  time 
and  the  various  phases  which  have  been  assumed  by 
the  earth,  under  the  successive  epochs  of  palasonto- 
logical  history,  To  the  Creator  it  is  only  a  moment ; 
to  our  finite  comprehension  it  seems  an  eternity. 

"  He  watereth  the  hills  from  his  chambers ;  the 
earth  is  satisfied  with  the  fruit  of  thy  works.  He 
causes  the  grass  to  grow  for  the  cattle  and  herb  for 
the  service  of  man  ;  that  he  may  bring  forth  food  out 
of  the  earth."  (Ps.  CIV,  13-14.) 


ESSAYS  AND  LETTERS.  403 

Who  can  look  at  the  hills  and  plains  of  the  earth, 
covered  with  grass  and  trees,  all  clothed  with  beauty 
and  richness,  springing  with  life  and  freshness  and  sup- 
porting flocks  and  herds  and  tribes  of  men ;  who  can 
look  at  all  this  glorious  envelopment  without  a  feeling 
of  wonder  and  adoration  ?  If  our  sense  of  time 
could  be  quickened  so  as  to  make  the  duration  of  a 
year  seem  but  an  hour,  or  a  minute,  the  earth  and  its 
vesture  would  appear  a  living  thing ;  coming  and 
departing  vegetation  would  appear  to  move  rapidly 
before  our  eyes,  the  assuming  and  putting  off 
annual  verdure,  the  grass  of  the  fields  and  the  leaves 
of  the  trees,  would  seem  like  the  peaceful  breathing  of 
a  person  in  sleep  ;  the  earth  would  appear  a  gigantic 
living  being,  invested  with  life  and  all  vital  motions 
and  forces. 

LITCHFIELD,  July  5, 1891. 


RELIGIOUS  FORMS. 

Whilst  believing  in  the  infinite  mercy  and  goodness 
of  God,  and  being  confidently  willing  to  trust  to  that 
alone,  I  entertain  profound  respect  and  consideration  for 
those  who  trust  in  dogmas  and  theories  of  atonement 
and  in  church  organizations  and  religious  observances, 
and  I  would  not  for  the  world  discourage  them  from 
performing  their  pious  work.  They  do  great  good  to 
those  who  cannot  be  affected  by  religious  principles  in 
any  other  way.  Churches  and  preaching  and  prayers, 
and  worship  in  every  form,  have  wonderfully  effective 
uses ;  and  those  who  minister  therein  should  be  treated 
with  all  courtesy  and  respect  for  their  sincere  efforts 


404  MISCELLANEOUS   WRITINGS. 

to  benefit  others  and  for  the  great  good  they  do.  "  Do 
not  wonder  at  these  amulets,"  said  Pericles  on  his  sick- 
bed to  Alcibiades,  "  above  all  do  not  order  them  to  be 
removed.  The  kind  old  nurses  who  has  been  carefully 
watching  over  me  day  and  night  are  persuaded  that 
they  will  save  my  life.  Superstition  is  rarely  so  kind- 
hearted  ;  whenever  she  is  unable,  as  we  are,  to  rever- 
ence, let  us  at  least  respect  her."  I  would  not  only 
respect,  I  would  reverence  the  kind  intentions  of  a 
sincere  minister,  and  of  all  others  who  have  a  firm 
conviction  in  a  religious  creed.  Whatever  may  be  our 
own  views,  and  however  well  settled  and  grounded, 
we  cannot,  without  danger  to  society  and  its  dearest 
interests,  turn  our  backs  upon  the  religious  institutions 
which  play  so  important  a  part  in  humanizing  and 
refining  mankind.  No  other  religious  belief,  or  disbelief, 
could  have  done  so  much  for  the  elevation  and  refine- 
ment of  the  human  race  as  Christianity  has  done 
during  the  last  eighteen  hundred  years. 

If  we  do  not  believe  in  miracles,  we  may  well  believe 
in  the  vast  importance  and  benefit  of  those  hoary 
traditions  of  Divine  influence  which  have  become  as 
effective  for  good  with  the  great  mass  of  mankind  as 
if  they  were  based  on  the  most  certain  deductions  of 
reason  and  experience.  When  they  become  merged 
into  idle  superstition  and  the  plea  for  cruel  and  pre- 
scriptive intolerance,  they  may  be  justly  opposed  ;  but 
when  only  employed  for  the  promotion  of  religious  and 
pious  affections,  they  are  of  incalculable  value  to 
society.  It  will  only  be  when  men  become  perfect  that 
positive  institutions  of  religion  can  be  safely  dispensed 
with. 

But  there  is  no  reason  why  a  man  of  superior 
intelligence  should  allow  his  own  spiritual  equanimity 


ESSAYS   AND   LETTERS.  405 

and  calm  trust  in  the  Divine  goodness  to  be  disturbed. 
His  accounts  between  him  and  his  Maker  are,  of  all 
things,  his  own  affair,  not  to  be  meddled  with  by 
others.  If  meddled  with  from  good  or  kindly  motives, 
he  can  afford  to  indulge  the  intrusion  with  kind  and 
grateful  acquiescence.  At  the  same  time,  when  called 
to  approach  the  presence  of  his  infinite  and  beneficent 
Creator,  he  can  do  so  with  a  feeling  of  sure  dependence 
on  His  paternal  love.  He  may  have  been  erratic  and 
offending,  but  he  is  a  child,  and  may  at  last  rely  on 
his  Heavenly  Father's  paternal  love. 
June,  1889. 


DANGER   OF   ABROGATING   RELIGIOUS   FORMS. 

Suppose  the  guesses  of  Science  are  true,  and  that 
creation  has  proceeded  by  a  process  of  development  for 
countless  ages,  producing  species  and  genera  one  after 
another,  and  proceeding  gradually  from  rude  to  high  and 
delicate  organizations — according  to  laws  implanted 
in  the  system  which  we  call  nature  and  the  world— 
without  any  direct  intervention  of  a  separate  intelli- 
gence and  without  any  direct  communication  from 
such  intelligence  of  the  principles  of  knowledge  or  duty ; 
these  being  left,  like  all  else,  to  be  developed  by  natural 
causes,  by  reason  and  experience.  Suppose  all  this  to 
be  true.  Is  the  world  ripe  for  such  knowledge  ? 
Evidently  not.  Ages  must  yet  transpire.  Too  many 
are  interested  in  the  support  of  existing  systems,  and 
the  masses  are  too  little  developed  in  moral  perception 
and  principle  to  make  it  safe  to  abandon  the  artificial 
methods  and  sanctions  by  which  order  is  maintained. 
Resistance  to  the  prejudices  of  mankind  only  injures 


406  MISCELLANEOUS   WRITINGS. 

him  who  offers  it.  If  a. % community  imposed  the 
penalty  of  death  for  wearing  scarlet,  none  but  a  fool 
would  put  it  on.  Until  the  world  is  ready  for  the  truth, 
it  is  not  safe  to  communicate  it,  except  to  the  select  few 
who  can  be  trusted  to  embrace  and  guard  it ;  that 
select  few  who  are  governed  by  inherent  and  unbend- 
ing rectitude.  The  wise  man  will  continue  to  respect 
and  observe  the  laws,  usages  and  modes  which  prevail, 
and  which  society  regards  as  essential  to  the  conserva- 
tion of  order  and  morality.  Mankind  in  general  can 
only  be  gradually  awakened  to  truth.  The  light  of 
science  will,  in  the  end,  quench  the  farthing  candles  of 
error  and  superstition.  But  the  time  cannot  be 
hastened  by  violence.  So  long  as  the  moral  and  social 
habiliments  which  men  choose  to  wear  are  productive 
of  good  and  not  of  evil,  it  is  not  necessary  for  one  to 
seek  martyrdom  by  a  bold  declaration  of  the  whole 
truth.  Let  such  cherish  it  in  his  own  bosom  without 
thrusting  it  offensively  upon  others.  Like  the  little 
leaven  hidden  by  the  housewife  in  the  meal,  it  will 
gradually,  but  surely,  permeate  the  whole  lump.  At 
present,  however,  the  existing  institutions  are  pro- 
ductive of  good,  and  therefore  necessary.  To  over- 
throw them  would  be  to  overthrow  morality.  In 
cutting  loose  from  established  forms,  one  is  apt  to  cut 
loose  from  the  standards  of  duty  themselves,  and  is  in 
danger  of  running  into  wild  and  fathomless  specula- 
tion. These  standards  are  the  result  of  ages  of  human 
experience,  and  ought  to  be  regarded  as  sacred  as  if 
directly  communicated  by  a  personal  Deity.  The  fiction 
that  they  were  so  communicated  may  give  them  addi- 
tional power  over  feeble  intellects,  and  should  not  be 
rudely  dispelled  from  their  imaginations.  A  wise  man, 


THE  SABBATH  AND  SUNDAY.          407 

therefore,  will  not  only  tolerate,  but  continue  to 
observe,  the  forms  of  religious  and  moral  practice- 
not  because  founded  on  supernatural  sanctions,  as  is 
pretended,  but  because  they  have  been  found  of  great 
use  in  preserving  and  inculcating  the  principles  of  order 
and  duty,  on  which  all  human  happiness  is  based. 


THE  SABBATH  AND  SUNDAY. 

The  injunction  to  keep  holy  the  Sabbath,  though 
included  in  the  ten  commandments,  is  not  an  obligation 
of  natural  law,  but  was  a  special  regulation  imposed 
upon  the  Israelites  as  a  nation ;  and,  therefore,  it  is 
not  of  perpetual  or  universal  obligation.  It  was  not 
adopted  as  an  institution  of  Christianity,  but  was 
expressly  repudiated  as  such.  The  early  Christians, 
desirous  of  having  a  set  day  for  religious  assemblies, 
as  well  as  for  a  festival,  selected  the  first  day  of  the 
week ;  first,  in  order  to  show  their  repudiation  of  the 
Sabbath ;  secondly,  as  a  memorial  of  Christ's  resur- 
rection. But,  aside  from  meeting  together  for  wor- 
ship, and  enjoying  the  day  as  a  festival,  they  attached 
no  religious  sanctity  to  it  inconsistent  with  the  pursuit 
of  their  ordinary  avocations  and  amusements.  It 
was  not  until  later  times,  when  the  ecclesiastical  spirit 
became  more  dominant,  that  it  was  enforced  as  a 
Sabbath. 

In  support  of  these  propositions  we  might  rely  on 
the  authority  of  the  learned  Selden,  who  treats  of  the 
Sabbath  in  Book  III,  cc.  19-23  of  his  work,  Dejure 
Naturae  et  gentium  apud  Hebrseos  ;  also  of  Milton  in 
his  posthumous  publication,  De  Doctrina  Christiana. 


408  MISCELLANEOUS  WRITINGS. 

But  it  is  more  satisfactory  to  refer  to  the  original 
sources  of  authority.  Let  us  look  first  at  the  original 
institution  of  the  Sabbath  amongst  the  Israelites.  We 
hear  nothing  of  its  observance  as  a  religious  day  until 
the  fall  of  manna  in  the  desert  of  Sinai,  related  in 
Exodus,  c.  XVI.  The  people  were  told  to  gather 
enough  on  the  sixth  day  of  the  week  to  suffice  for  the 
seventh,  on  which  day  they  \vere  directed  to  rest. 
(vs.  22-30.)  The  Egyptians,  it  is  true,  had  used  the 
hebdomas,  or  seven-day  division  of  time  for  ages  prior 
to  this  period,  as  shown  by  hieroglyphical  inscriptions, 
and  as  testified  by  Dio  Cassius ;  it  being  a  quarter  of 
the  period  taken  by  the  Moon  in  passing  through  the 
signs  or  Chambers  of  the  Zodiac ;  and  they  called  this 
quarter,  or  hebdomas  Uc,  nearly  the  same  as  the  old 
Saxon  Wuc  (week)  ;  and  they  had  named  the  days 
of  the  week  from  the  planets,  Sun,  Moon,  Mars, 
Mercury,  Jupiter,  Venus  and  Saturn,  in  the  order  here 
given,  being  the  same  order  afterwards  adopted  by 
the  Hindoos,  and  still  later  by  the  Romans,  and  which 
still  prevails  with  us.  The  Israelites  rejected  these 
names  as  savoring  of  idolatry,  and  designated  the 
days  by  number  only,  except  the  seventh,  which  they 
called  the  Sabbath.  But  there  is  no  evidence  that 
either  of  these  days  of  the  hebdomas  had  been  set 
apart  for  religious  purposes,  or  as  a  Sabbath,  until  it 
was  so  done  amongst  the  Israelites  ;  although  Hesiod, 
in  enumerating  the  days  of  the  lunar  month,  calls  the 
seventh  day  "  the  sacred  seventh,"  which  may  be  an 
allusion  to  some  archaic  traditions  on  the  subject. 

A  short  time  after  the  fall  of  manna  had  com- 
menced, the  ten  commandments  were  given  to  the 
Israelites  at  Mount  Sinai ;  but  they  were  given  to  them 


THE  SABBATH  AND  SUNDAY.  409 

as  a  national  written  law,  and  were  of  no  further 
obligation  upon  other  nations  than  as  they  embodied 
or  expressed  the  natural  law.  With  the  exception  of 
the  injunction  to  keep  holy  the  Sabbath,  they  are  of 
this  character,  and  as  such  were  summarized  by  Christ 
(quoting  Deut.  VI,  5  and  Levit.  XIX,  19)  in  the  two 
great  fundamental  precepts— to  love  God  supremely, 
and  our  neighbor  as  ourselves.  Matt.  XXII,  37  ;  Mark 
X,  19-20 ;  Luke  X,  27.  That  the  law  of  the  Sabbath 
was  special  and  national  is  shown  in  Deut.,  c. 
V,  where  the  ten  commandments  are  recapitulated ; 
and  where  the  reason  given  (v.  15)  for  the  institution 
of  the  Sabbath  is  peculiarly  national :  "  Remember 
that  thou  wast  a  servant  in  the  land  of  Egypt,  and 
the  Lord  thy  God  brought  thee  out  hence  through  a 
mighty  hand  and  a  stretched  out  arm ;  therefore,  the 
Lord  thy  God  commanded  thee  to  keep  the  Sabbath 
day."  In  Exodus,  c.  XXXI,  v.  13,  when  the  keeping 
of  the  Sabbath  is  enjoined,  the  reason  given  is,  "  for  it 
is  a  sign  between  me  and  you  throughout  your  gener- 
ations," and  in  verse  16  it  is  added,  "  wherefore  the 
children  of  Israel  shall  keep  the  Sabbath,  etc.,  for  a 
perpetual  covenant." 

When  Christ  commenced  preaching  the  new  dispen- 
sation for  all  mankind,  he  evidently  repudiated  the 
Jewish  idea  of  the  Sabbath.  When  he  enumerated  the 
commandments  which  the  young  ruler  was  to  keep  in 
order  to  have  eternal  life,  the  command  to  keep  the 
Sabbath  was  not  mentioned.  And  that  this  is  no  slip 
of  the  pen,  or  omission  of  the  historian,  is  evinced  by 
the  concurrent  relation  of  three  Evangelists  (Matt. 
XIX,  18 ;  Mark  X,  19 ;  Luke  XVIII,  20).  Christ 
also  availed  himself  of  repeated  opportunities  of 


410  MISCELLANEOUS  WRITINGS. 

showing  His  opinion  of  tlie  Sabbath.  Notwithstand- 
ing the  disapprobation  of  the  Jews,  He,  on  that  day, 
healed  the  sick,  cured  the  blind,  and  allowed  His 
disciples  to  gather  food,  telling  His  hearers  that  it  was 
lawful  to  do  good  (that  is,  any  good  act)  on  the 
Sabbath  day ;  that  the  Sabbath  was  made  for  man 
and  not  man  for  the  Sabbath  ;  and  that  He,  the  Son 
of  Man,  the  Representative  of  Humanity,  was  Lord 
even  of  the  Sabbath  day,  thereby  clearly  indicating 
that  the  institution,  so  far  as  mankind  in  general  are 
concerned,  was  subject  to  Human  regulation  and  sub- 
servient to  human  happiness.  (See  Matt.  XII,  1-13  ; 
Mark  II,  23,  III,  5  ;  Luke  VI,  1-10,  XIII,  11-17,  XIV, 
1-6;  John  VII,  23,  IX,  13-16.) 

About  eighteen  or  twenty  years  after  Christ's 
death,  when  large  numbers  of  Gentiles  had  been 
added  to  the  church,  the  question  came  squarely  up, 
whether  the  laws  and  observances  of  Moses  were  to 
be  binding  on  Christians.  (Acts  c.  XV.)  A  solemn 
Assembly,  or  Synod,  was  held  on  the  subject  in 
Jerusalem,  and  after  speeches  from  Peter,  Barnabas, 
Paul  and  James,  it  was  finally  settled  that  none  of 
such  laws  or  observances  were  to  be  binding  except 
in  four  specified  matters,  of  which  the  Sabbath  is 
not  one.  The  Christians  in  Judea,  it  is  true,  being 
mostly  Jews  and  always  accustomed  to  conform  to 
those  laws,  still  observed  them,  and  were  even  zealous 
about  them.  (Acts  XXI,  17-18.)  And  many  Jewish 
converts  in  other  countries  endeavored  to  inculcate 
the  obligation  of  these  laws,  which  would  have  had 
the  effect  of  reimposing  the  yoke  of  servitude,  in 
ordinances,  from  which  Christians  had  been  authori- 
tatively freed.  This  became  the  occasion  of  frequent 


THE   SABBATH   AND   SUNDAY.  411 

and  vehement  animadversions  on  the  part  of  Paul, 
and  constituted  the  burden  of  several  of  his  epistles. 
Thus,  in  his  Epistle  to  the  Colossians,  writing  on  this 
subject,  he  conjures  them  not  to  let  any  man  beguile 
them  with  enticing  words  (II,  4) ;  that,  as  they  had 
received  Christ  (that  is,  the  doctrine  of  Christ),  so 
they  should  walk  therein  (v.  6) ;  reminding  them  that 
Christ  had  blotted  out  the  handwriting  of  ordinances 
(v.  14) ;  and  he  enjoins  them  to  let  no  man  judge 
them  (that  is,  call  them  to  account)  on  the  subject  of 
meats,  drink  or  holydays,  or  new-moons  or  Sabbaths, 
which  he  declared  were  mere  shadows  of  things  to 
come,  Christ  being  the  body  or  substance  (vs.  16-17). 
Again,  in  Romans,  c.  XIV,  1,  he  inculcates  the  utterly 
unessential  character  of  these  ordinances — "  Him  that 
is  weak  in  the  faith,  receive  ye,  but  not  to  doubtful 
disputation.  For  one  believeth  that  he  may  eat  all 
things  ;  another,  who  is  weak,  eateth  herbs.  Let  not 
him  that  eateth  despise  him  that  eateth  not,  and  let 
not  him  which  eateth  not  judge  him  that  eateth," 
etc.  One  man  esteemeth  one  day  above  another ; 
another  esteemeth  every  day  alike.  Let  every  man 
be  fully  persuaded  in  his  own  mind."  These  passages 
show  that  the  observances  of  Sabbaths  and  holy  days 
was  reckoned  in  the  same  category  as  the  prohibition 
to  eat  certain  meats.  The  principal  burden  of  the 
Epistle  to  the  Galatians  is  this  very  subject  of  Mosaic 
ordinances  and  the  abolition  thereof  by  the  death  of 
Christ.  The  Judaizing  teachers  had  produced  a  sen- 
sible impression  upon  the  Galatean  converts.  It  is 
in  reference  to  this  that  Paul  bursts  out  in  that 
notable  exclamation,  "  O  foolish  Galatians,  who  has 
bewitched  you  ?  "  etc.  The  great  lesson  of  the  Epistle 


412  MISCELLANEOUS  WRITINGS. 

is,  that  Christ  had  freed  -his  followers  from  the  law 
of  Moses  and  had  established  a  spiritual  and  practical 
religion  whose  essence  consisted  in  faith,  love  and 
good  works.  (See  the  whole  of  the  fifth  chapter). 

It  seems  clear,  therefore,  that  the  great  leaders 
of  the  Christian  movement  regarded  the  Sabbath  as 
no  longer  a  binding  institution. 

The  question  remains  as  to  the  rule  and  practice  of 
the  early  church  with  regard  to  the  first  day  of  the 
week,  or  Sunday. 

It  is  certain  that  from  the  earliest  times  (after 
Christ's  death)  the  Christians  were  in  the  habit  of 
meeting  together  on  this  day  for  worship,  and  also  of 
keeping  it  as  a  festival  in  remembrance  of  Christ's 
resurrection.  But  it  is  equally  certain  that  the  day 
was  not  kept  as  a  Sabbath.  To  have  kept  it  as  such 
would  have  been  repugnant  to  the  Christian  idea  of 
freedom  from  Mosaic  burdens  and  ordinances.  Subject 
to  the  duty,  or  privilege,  of  meeting  for  worship,  there 
is  no  evidence  that  the  early  Christians  did  not  feel 
authorized  to  pursue  their  ordinary  avocations  and 
amusements  on  that  day.  Its  dedication  to  public 
worship  and  festal  enjoyment  was  not  by  command- 
ment, but  by  choice  and  general  consent.  In  later 
times  its  more  stringent  observance  was  inculcated  by 
ecclesiastical  authority  or  by  civil  laws  enacted  under 
ecclesiastical  influence. 

A  reference  to  some  Scripture  passages  will  show 
how  its  use  probably  originated.  Christ,  as  before 
stated,  rose  on  the  first  day  of  the  week ;  and  that 
evening  He  appeared  to  the  Apostles,  who  were 
assembled  together  in  a  closed  apartment  for  fear  of 
the  Jews.  (John  XX,  19.)  A  week  later  they  were 


THE  SABBATH  AND  SUNDAY.          413 

again  assembled,  and  Christ  again  appeared  to  them, 
on  the  occasion  when  He  upbraided  Thomas  for  his 
want  of  faith.  (John  XX,  26.)  It  is  probable 
that  the  Apostles  and  more  prominent  disciples 
continued  to  meet  on  this  day,  since  we  find  that  a  few 
weeks  later  they  were  so  met  on  Pentecost  (which 
occurred  on  the  first  day  of  the  week)  (Levit.  XXIII, 
16),  on  which  occasion  the  Spirit  was  miraculously 
communicated  to  them.  This  appears  to  have  been 
the  remote  origin  of  the  Christian  use  of  the  day. 
The  Apostles  often  frequented  the  synogogues  on  the 
Sabbath,  it  is  true,  because  it  gave  them  an  oppor- 
tunity of  addressing  the  Jews;  but  the  general 
practice  of  the  Christians  themselves  undoubtedly  was 
to  meet  for  worship  on  the  first  day.  Thus  we  are 
told  that  Paul,  on  one  of  his  missionary  tours,  came 
to  Troas  and  tarried  there  seven  days,  and  "  upon  the 
first  day  of  the  week,  when  the  disciples  were  together 
to  break  bread,  Paul  preached  unto  them."  (Acts 
XX,  7).  About  the  same  time,  writing  to  the 
Corinthian  Christians,  and  amongst  other  things 
urging  them  to  contribute  to  the  donations  being 
made  for  the  suffering  Christians  in  Judea,  he 
said  :  "  On  the  first  day  of  the  week  let  every  one  of 
you  lay  by  him  in  store,  that  there  be  no  collections 
when  I  come."  (I  Corinth.  XVI,  2.)  In  fine,  before 
the  completion  of  the  New  Testament  Canon,  the 
day  had  become  so  marked  by  custom  and  usage 
that  it  received  the  appellation  of  "  Our  Lord's  Day  " 
(Dies  Dominicus.)  The  author  of  the  book  of  Revela- 
tions uses  the  expression  "  I  was  in  the  Spirit  on  the 
Lord's  day."  (Rev.  L,  10.) 

The  general  testimony  of  antiquity  and  tradition 
of  the  Fathers  of  the  Church  are  to  the  effect  that  the 


414  MISCELLANEOUS  WRITINGS. 

day  was  habitually  used  as  above  stated.  I  think 
Tacitus  says  that  the  Christians  were  in  the  habit  of 
meeting  together  and  singing  divine  hymns  on  that 
day. 

The  first  civil  regulation  on  the  subject  of  the 
observance  of  Sunday  was  made  by  Constantine  in 
the  year  A.  D.  321.  As  this  Ordinance,  or  Constitu- 
tion, as  it  is  called,  probably  shows  the  general 
Christian  sentiment  at  that  period  with  regard  to  the 
proper  mode  of  observing  the  day,  a  translation  of  it 
is  appended,  together  with  a  second  ordinance  by  the 
same  Emperor,  and  an  abstract  of  subsequent  Roman 
laws.  It  will  be  perceived  that  after  Christianity 
became  the  religion  of  the  state,  and  the  power  of  the 
Ecclesiastics  consequently  increased,  the  regulations 
grew  more  and  more  strict. 

IMPERIAL  CONSTITUTIONS. 

1.  By  Constantine,  March,  A.  D.  321.   "All  judges, 
inhabitants  of  cities  and  artisans  shall  rest  on  the 
sacred  day  called  Sunday  (die  Solis).     But  those  in 
the  country   may  freely  and  lawfully  attend   to   the 
culture  of  the  land,  since  it  often  happens  that  corn 
cannot  be  committed  to  the  furrows,  nor  vines  to  the 
ditches,  so  well  on  any  other  day  ;  and  we  should  not 
permit  the  blessings  of  heaven  to  fail  by  neglecting 
the  favorable  moment." 

(Code  Justinian,  B.  Ill,  tit.  12). 

2.  By  the  same,  June,  321.     "  Though  we  have 
deemed  it  improper  that  Sunday,  a  holiday  of  peculiar 
sanctity,  should  be  occupied  in  contentious  litigation 
between  parties ;  yet  it  is  our  pleasure  that  on  that 
day   those  things  may   be  concluded   which  are,   in 


THE  SABBATH  AND  SUNDAY.  415 

themselves,  highly  desirable ;  and,  therefore,  on  this 
festival  all  persons  shall  have  liberty  of  emancipation 
and  manumission ;  and  no  legal  proceedings  to  that 
end  shall  be  prohibited.  (Codex  Theodos.  II,  8). 

WESTERN  EMPIRE. 

3.  Valentinian  the  Elder,  A.  D.  368,  decreed  that 
no  taxes  should  be  collected  from  Christians  on  Sunday. 
(Codex  Theodos.  VIII,  8). 

Valentinian  the  Younger,  A.  D.  386,  decreed  that 
all  legal  proceedings  whatever  and  all  business  gener- 
ally should  cease  on  Sunday,  which  (it  is  added)  "  Our 
ancestors  properly  called  the  Lord's  day."  (Code 
Theod.  Vin,  8-3). 

EASTERN  EMPIRE. 

4.  Theodosius  the  Great,  A.  D.  379,  forbade  the 
exhibition  of  shows  on  Sunday.    (Codex  Theodos.  XV, 
5-2).     And    Theodosius    the    Younger,    A.    D.   425, 
extended  this  prohibition  to  all  the  cities  of  the  Empire. 
(Code  Theod.  XV,  5.) 

As  a  matter  of  general  history,  it  may  be  asserted 
that  the  practice  of  Christendom,  as  to  the  observance 
of  Sunday,  corresponded  for  the  most  part  with  the 
character  of  the  day  which  we  have  endeavored  to 
describe.  It  was  always  the  practice  to  celebrate 
public  worship  on  Sunday  and  to  devote  the  rest  of 
the  day  to  festal  purposes,  amusements  and  social 
gatherings.  It  was  only  at  a  late  period,  after  the 
rise  of  Puritanism  in  England  and  Presbyterianism  in 
Scotland,  that  in  those  countries  the  day  was  converted 
into  a  strict  Sabbath.  This  resulted  from  the  Puritan 
theory  that  the  Old  Testament  church,  by  way  of 


416  MISCELLANEOUS   WRITINGS. 

symbol  or  type,  contained  within  it  all  the  essential 
elements  of  the  New  Testament  church,  and  that  all 
precepts  and  observances  not  expressly  abrogated  are 
still  binding.  Hence  they  recognized  the  perpetual 
obligation  of  the  fourth  commandment,  respecting  the 
Sabbath,  as  well  as  of  the  other  commandments, 
admitting  only  the  change  of  the  day  from  the  seventh 
day  of  the  week  to  the  first.  The  Continental  theolo- 
gians called  this  theory  the  English  Fiction  (Figmentum 
Anglicanum}.  It  was  carried  to  a  greater  extent,  if 
possible,  in  New  England  than  it  was  in  the  mother 
country.  Cotton  Mather  refers  to  a  correspondence 
on  the  subject  between  Rev.  John  Howe,  the  great 
Puritan  divine  and  the  Apostle  Elliott,  in  which  the 
latter  complained  of  the  laxity  which  prevailed  in 
England  in  the  observance  of  the  Sabbath.  He  con- 
tended that  it  was  not  enough  to  devote  the  day  to 
religion  in  the  same  manner  as  the  other  days  are 
devoted  to  labor  and  worldly  pursuits;  but  the 
Christian's  whole  being  should  be  consecrated  to 
holiness  continually  on  that  day,  without  even  per- 
mitting the  thoughts  to  wander  upon  secular  subjects. 
One  of  the  charges  against  Archbishop  Laud  was 
advising  the  King  to  publish  his  declaration  for  the 
use  of  sports  on  the  Lord's  day.  His  answer  was 
(inter-alia)  that  the  "  declaration  only  allowed  lawful 
recreation,  which  is  no  more  than  is  practiced  at 
Geneva."  (Neal's  Hist.  Puritans,  Vol.  II,  146).  The 
Commons  replied,  that  though  Calvin  differs  from  our 
Protestant  writers  about  the  morality  of  the  Sabbath, 
yet  he  expressly  condemns  dancing  and  pastimes.  ( Ib. ) 
We  are  fond  of  condemning  Catholics  and  others 
for  subverting  the  express  commands  of  Christ  and 


THE    SABBATH   AND    SUNDAY.  417 

his  Apostles  by  their  traditions  and  ceremonies.  Per- 
haps a  little  more  candor  would  reveal  a  very  large 
mote,  if  not  an  actual  beam,  in  our  own  eyes. 

PART  II. 

What  has  thus  far  been  said  on  the  subject  of  the 
Sabbath  and  on  the  observance  of  Sunday,  presents 
but  one  side  of  the  question  ;  it  shows  us  what  is  not 
the  true  Christian  idea  on  the  subject,  but  does  not 
show  what  the  positive  duty  of  the  Christian  is.  In 
order  that  the  conclusions  arrived  at  may  not  be 
misunderstood,  it  is  proper  to  look  for  a  moment  at 
the  other  side  of  the  question;  for  it  is  of  great 
importance,  both  to  ourselves  and  in  reference  to  our 
influence  upon  others,  that  we  should  clearly  settle  in 
our  own  minds  what  are  the  proper  duties  of  that  day 
which  even  in  Apostolic  times,  as  we  have  seen,  was 
called  "  the  Lord's  day."  Paul  said,  "  Let  everyone  be 
fully  persuaded  in  his  own  mind  "  on  this  very  point, 
intimating  that  we  should  have  fixed  convictions  in 
relation  to  it. 

What  conclusion,  then,  ought  we  to  form  with 
regard  to  the  mode  in  which  Christians  ought  to  keep 
the  day  ?  Are  they,  in  view  of  what  has  been  said,  to 
disregard  it  altogether  and  make  no  distinction  of  days, 
as  some  did  not  in  Paul's  time  ?  This  by  no  means 
follows.  It  is  true,  as  we  have  shown,  that  its 
observance  is  not  imposed  upon  us  as  a  Sabbath,  by 
which  is  to  be  understood  a  day  so  sacred  that  no 
secular  work  or  act  whatever  can  be  done,  and 
'no  diversions  can  be  indulged  in  on  that  day 
without  sin.  But  without  making  it  such  a  burden 
as  this",  so  utterly  inconsistent  with  the  idea  of 


418  MISCELLANEOUS  WRITINGS. 

Christian  liberty,  we  ar$  nevertheless  bound  to 
regard  with  the  greatest  deference  the  practice  of  the 
early  church  and  of  common  Christendom.  We  cannot 
cut  ourselves  loose  from  all  ecclesiastical  usages  and 
order  without  repudiating  the  organized  form  of  the 
Christian  society.  Whilst  it  is  not  only  lawful,  but  a 
duty,  to  scrutinize  the  foundation  of  the  observance, 
and  to  show,  if  such  be  the  fact,  that  it  is  not  by 
Divine  command,  but  the  result  of  the  consentaneous 
act  of  the  early  Christians,  and  whilst  we  may  properly 
reject  the  Judaical  notions  which  have  been  attached 
to  it  by  Puritanical  zealots,  utterly  at  war  as  they  are 
with  Christ's  and  Apostolic  ideas,  there  still  remain 
strong  reasons  why,  as  a  Christian  people,  we  should 
set  the  day  apart  for  public  worship,  for  rest  from  the 
toils  and  cares  of  ordinary  life,  and  for  purposes  of 
social  and  festal  enjoyment.  Thus  observed  it  is 
indeed  a  blessing,  as  well  as  the  means  of  promoting 
civilization  and  Christianity.  It  is  a  most  gladsome 
sight  to  the  philanthropist,  as  well  as  the  Christian,  to 
see  all  people  of  every  degree,  the  poor  as  well  as  the 
rich,  cease  from  sordid  and  worldly  occupations  on 
one  day  of  the  week,  and  come  forth,  old  and  young, 
in  clean  and  holiday  attire,  and  with  glad  faces  go 
together  to  the  house  of  prayer  and  perform  their  devo- 
tions ;  and  it  is  but  a  surly  sort  of  piety  that  grudges 
to  see  them  spend  the  balance  of  the  day  in  harmless 
festivity  and  neighborly  sociability.  The  Lord's  day 
thus  observed  is  a  bright  spot  in  human  life.  It 
elevates  the  moral  character  and  susceptibilities;  it 
humanizes,  it  civilizes,  it  refines.  It  teaches  to  think, 
it  promotes  social  intercourse,  it  takes  away  the 
coarseness,  the  roughness,  the  rusticity  of  those  who 
would  otherwise  be  secluded  from  softening  influences. 


THE  SABBATH  AND  SUNDAY.          419 

As  a  means  of  social  elevation  and  progress,  as  well 
as  of  religious  improvement,  its  influence  cannot  be 
adequately  estimated.  I  yield  the  precedence  to  no 
champion  of  sabbatical  ideas  in  imputing  to  the  due 
observance  of  Sunday  as  a  holyday,  such  as  described, 
the  most  important  part  in  the  cultivation  and  support 
of  virtue,  intelligence  and  refinement  and  in  the 
discouragement  and  suppression  of  vice. 

To  the  sanctions  and  usages  of  the  church  must  be 
added,  in  estimating  the  question  of  duty,  the  regula- 
tions on  the  subject  which  are  made  by  the  law  of  the 
land.  These,  at  the  present  time,  are  generally  in 
accord  with  the  true  character  of  the  day.  Whilst 
imposing  no  positive  act  to  be  done,  the  law  simply 
requires  the  cessation  of  ordinary  employments  and  of 
those  diversions  and  practices  which  would  disturb 
the  peace  and  quiet  of  the  day  (so  essential  to  the 
value  and  beauty  of  the  institution),  or  which  lead 
directly  to  the  practice  of  vice.  If  the  laws  attempt 
more  than  this,  they  generally  but  express  the  unwise 
zeal  of  those  who  made  them,  and  by  being  unnec- 
essarily severe,  defeat  their  own  purpose. 

That  civil  society  has  a  right  to  enact  wholesome 
laws  on  the  subject  is  manifest  both  from  the  sayings 
of  Christ  and  from  the  incalculable  benefits  which 
society  derives  from  the  institution.  The  sayings  of 
Christ  referred  to  are  those  which  have  been  quoted  in 
the  first  part  of  this  essay  :  "  It  is  lawful  to  do  good 
on  the  Sabbath  day ;"  "the  Sabbath  was  made  for 
man,^  and  not  man  for  the  Sabbath ;"  "  The  Son  of 
Man  is  Lord  even  of  the  Sabbath  day."  Applying  the 
spirit  of  these  remarks  to  the  institution  of  Sunday,  and 
they  express  all  that  I  contend  for  on  this  subject. 


420  MISCELLANEOUS   WRITINGS. 

The  conclusion,  therefore,  is,  that  as  an  institution 
of  the  church  and  of  civil  society,  we  cannot  afford  to 
ignore  as  a  duty  the  observance  of  Sunday,  in  the 
manner  above  described,  not  making  it  like  the  Jewish 
Sabbath,  a  burden  upon  our  consciences  and  our  liberty. 
Having  performed  the  religious  duties  of  the  day, 
according  to  ancient  Christian  usage,  we  are  free  to 
enjoy  social  converse  and  harmless  festivity,  or  the 
beauties  of  nature  or  art;  and  if  imminent  cause 
requires,  we  may  rightfully  do  those  things  which  are 
necessary  to  prevent  the  destruction  or  injury  of  life 
or  property.  To  enjoin  the  contrary  would  be  to  put 
a  strain  upon  the  conscience  which  would  result  in 
greater  harm  than  good. 

The  question  has  often  been  raised  whether  the 
observance  of  Sunday  as  a  day  of  rest  is  a  precept  of 
the  common  law.  In  Hawkes'  Grounds  of  the  Laws 
of  England  (1657)  is  laid  down  this  maxim :  Dies 
Dominicus  non  est  dies  juridicus.  The  Sabbath 
day  is  no  day  for  the  law ;  as  upon  a  Fine  levied 
by  Proclamations  according  to  the  statute  of  4  H. 
7,  c.  24.  If  any  of  the  proclamations  be  made  on 
the  Sabbath  day,  all  the  proclamations  be  erroneous, 
for  the  Justices  must  not  sit  upon  that  day,  but  it  is 
a  day  exempted  from  such  businesses  by  the  common 
law,  for  the  solemnity  of  it,  to  the  extent  that  the 
people  may  apply  themselves  that  day  to  the  service 
of  God.  (5  Cru.  Dig.  99.) 

"  No  plea  shall  be  holden  quindenas  Pasche,  because 
it  is  always  the  Sabbath,  but  shall  be  Crastino  quin- 
denae  Pasche.  Fit.  Nat.,  fo.  17  f. 

"  Teste  of  Sci.  Fa.  upon  Sunday  is  error.  Dyer 
168. 


THE  SABBATH  AND  SUNDAY.          421 

"  No  sales  upon  a  Sunday  shall  be  said  to  be  a 
sale  in  market  overt  to  alter  the  property.  12  E.  4.8. 

"  Ministerial  acts  are  allowed,  as  to  arrest  or  serve 
process,  otherwise  peradventure  they  should  not  be 
executed,  and  God  forbid  that  things  of  necessity 
should  not  be  done  on  that  day,  for  bonum  est  bene 
facere  die  Sabbati." 

"Dies  Dominions  non  est  jnridicus."  Co.  Lit.  135. 
2  Saund  291.  Wingate's  Max.  5.  Noys'  Max.  2  (5th 
Ed. )  Exercising  trade  of  butchers  no  offence  at  com. 
mon  law.  I  Stra.  702.  Noy.  2  (Ed.  5).  Finch's 
Law,  3  b.  No  proceedings  in  a  suit  can  be  entered  as 
done  on  a  Sunday  without  making  all  void.  2  Inst. 
264.  3  Buv.  159. 

(See  further  as  to  English  Law  on  the  subject,  11 
Rep.  65.  Finch  L.  7  ;  1  Atk.  58  ;  IT.  R.  265 ;  Com. 
Dig.  Temps  (B.  3)  20  Yin.  Abr.  61 ;  4  Bl.  com.  65 ;  1 
Hawk  P.  C.  11 ;  3  Burns  Just.  106  ;  Broom's  Max. 
21,  3  D.  &  L.  328,  330  Docd.  Williamson  vs.  Roe,  3 
D.  &  L.  328). 

The  question  whether  Christianity  is  part  of  the 
common  law  is  discussed  by  Mr.  Jefferson  in  an 
appendix  to  his  reports,  and  rediscussed  in  a  letter  to 
John  Adams  dated  January  24,  1814  (Works,  Vol. 
VI,  302-305),  and  in  a  letter  to  Ed.  Everett,  Oct. 
15, 1824  (Works,  Vol.  VII,  380-383) ;  also,  in  Blakely's 
"  State  Papers  on  Sunday  Legislation,"  127-141. 

Mr.  Jefferson  says  that  all  the  dicta,  that  Chris- 
tianity is  part  of  the  common  law  take  their  origin 
from  an  observation  of  Judge  Prisot  in  a  case  in  C.  B. 
34  fl.  6,  fo.  38,  in  which  it  was  a  question  how  far 
the  case  (being  up  on  a  right  of  presentation)  was 
to  be  governed  by  the  Eccl.  Law,  and  he  said :  "To 


422  MISCELLANEOUS  WRITINGS. 

such  laws  as  they  of  the  Holy  Church  have  in  ancient 
•writing  (ancient  scripture)  we  ought  to  give  credence  ; 
for  so  is  the  common  law  on  which  all  manner  of  laws 
are  founded."  The  Judge  here  did  not  refer  to  the 
Bible  or  Holy  Scripture,  but  to  the  ancient  writ- 
ings by  which  the  Ecclesiastical  Law  was  known,  yet 
by  a  strange  misinterpretation  it  was  supposed  that 
the  Holy  Scriptures,  and  hence  the  whole  Christian 
religion  was  meant ;  and  subsequent  writers  and 
judges  refer  to  Prisot  as  laying  down  this  doctrine, 
which  is  totally  without  foundation. 


ON  THE  EXISTENCE  OF  A  GOD. 

Is,  or  can  there  be,  such  a  thing  as  a  principle 
without  a  subject  ?  And  as  we  know  from  the  testi- 
mony of  our  own  consciousness  that  there  are  such 
principles  as  justice,  truth,  equality,  etc.,  without  and 
independent  of  ourselves,  is  not  this  the  reason  why 
the  mind  clings  to  the  idea  of  a  God— a  substance  (to 
speak  figuratively)  to  support  and  give  existence  to 
these  spiritual  qualities  ?  We  cannot  conceive  of  their 
existing  independently  of  any  subject.  That  great 
Being  from  whom  we  spontaneously  infer  that  they 
flow,  we  call  God. 

[As  touching  the  above  reasoning,  we  give  the  fol- 
lowing unknown  quotation — with  Judge  B.'s  com- 
ment] : 

"  Since  there  must  have  been  something  from  eter- 
nity because  there  is  something  now,  the  Eternal  Being 
must  be  intelligent  because  there  is  intelligence  now 
(for  no  man  will  venture  to  assert  that  nonentity  can 


ESOTERIC   THOUGHTS   ON   RELIGION.  423 

produce  entity,  or  nonintelligence,  intelligence),  and 
such  a  Being  must  exist  necessarily,  for  it  is  no  more 
possible  to  conceive  of  an  infinite  than  a  finite  progres- 
sion of  effects  without  a  cause." 

"  Did  you  ever  see  anything  more  perfect  that  this  ?" 

J.  P.  B. 


ESOTERIC  THOUGHTS  ON  RELIGION  AND 
RELIGIONISM. 

On  this  subject  my  views  have  undergone  consider- 
able modification  within  a  few  years  past.  The  dis- 
coveries of  modern  science  have  rendered  some  of  our 
orthodox  notions  untenable.  But  I  feel  that  it  is 
necessary  to  guard  against  that  laxity  of  principle 
which  is  too  apt  to  follow  an  abandonment  of  former 
convictions.  When  the  mind  becomes  unsettled  with 
regard  to  its  traditionary  forms  of  faith  and  observ- 
ance, the  danger  is  that  it  may  cast  loose  from  the 
principles  of  morality  itself.  This  gives  rise  to  the 
argumentum  ab  inconvenient!  which  constitutes  the 
strongest  bulwark  of  dogmatism  against  the  assaults 
of  truth.  I,  therefore,  once  for  all,  protest  that  what- 
ever modifications  my  views  of  the  theoretical  and 
speculative  part  of  religion  may  have  undergone,  I  do 
not  abate  one  jot  or  tittle  from  the  claims  of  religion 
as  a  principle  of  action,  the  sanctity  of  the  moral  law, 
or  the  necessity  of  aids  and  appliances  for  cultivating 
the  moral  nature  and  promoting  moral  purity.  The 
result  of  the  ethical  consciousness  in  man,  no  matter 
by  what  sanctions  encouraged  and  enforced,  has  been 
the  construction  of  a  profound  system  of  moral  and 


424  MISCELLANEOUS  WRITINGS. 

social  laws,  which  is  to  be  held  sacred  and  inviolable. 
This  may  justly  be  deemed  the  expression  of  Divine 
Law,  because  evolved  from  the  Spiritual  exercise  of  a 
being" proceeding1  from  the  Divine  hand  and  informed 
by  Divine  gifts,  although  engaged  in  an  arduous 
struggle  with  sordid  and  deteriorating  influences. 
Whilst  this  law  is  enforced  with  terrible  directness  and 
uncompromising  earnestness  in  the  Holy  Scriptures,  a 
large  portion  of  its  code  is  also  found  in  the  recorded 
thoughts  of  the  nations  called  heathen. 

But,  first  of  all,  we  should  aim  to  get  clear  notions 
of  what  the  essence  of  religion  is. 

We  have  been  taught  that  the  chief  end  of  religion 
is  to  avoid  eternal  misery  and  obtain  eternal  happi- 
ness. But,  in  my  judgment,  its  true  object  is  to  make 
men  better,  or  rather,  to  make  them  good — a  word 
which  includes  every  virtue.  If  this  is  attained,  the 
future  may  be  left  to  take  care  of  itself,  and  should,  at 
least,  excite  no  fears.  Religion  inculcates  piety  towards 
God  and  man,  and  is  summed  up  by  Jesus  Christ  in  love 
to  God  and  man.  It  has  been  well  defined  as  the  recog- 
nition of  God  as  an  object  of  worship,  love  and  obedi- 
ence, and,  secondly,  as  the  state  of  mind  resulting 
from  and  in  harmony  with  such  recognition.  Some 
have  called  it  the  effort  of  man  to  perfect  himself.  But 
the  word  "  religion  "  is  used  in  many  senses  :  First, 
for  the  bond  of  relationship  between  God  and  man, 
and  the  duty  of  man  arising  therefrom.  This  is 
religion  considered  objectively,  but  still  apart  from 
outward  observances.  Secondly,  it  is  used  to  express 
the  condition  of  the  human  heart  and  life  when  in 
harmony  with  this  relationship  ;  or  religion  considered 
subjectively  in  man.  St.  James  speaks  of  this  when 


ESOTERIC   THOUGHTS   ON   RELIGION.  425 

he  says,  "  Religion  (religio)  pure  and  undented  before 
God  the  Father  is  this :  to  visit  the  fatherless  and 
widows  in  their  afflictions,  and  to  keep  himself 
unspotted  from  the  world."  And  Yerrius  Flaccus, 
before  James,  had  said,  "The  religious  man  not  only 
reverences  the  Gods,  but  is  kind  and  obliging  to 
men."  (Deorum  sanctitatem  magni  asstimaus-omciosus 
ad  versus  hominus)  (Festus,  verb.  Religiosus).  Thirdly, 
The  word  religion  is  used  to  designate  the  systems  of 
faith  and  worships  adopted  and  used  by  different  people 
and  sects.  These  are  the  formulas  and  ceremonies  by 
which  men  have  endeavored  to  preserve  and  promote 
religious  and  moral  culture  in  the  world.  They  may 
often  have  been  perverted  to  subserve  private  interests, 
avarice  or  ambition,  but  they  have  no  doubt  had  a 
beneficial  effect  in  impressing  the  body  of  mankind 
with  religious  convictions  more  or  less  useful. 

There  is  hardly  a  people  on  earth  so  degraded  as 
not  to  have  some  religion.  A  recognition  of  some 
Superior  Being  who  controls  human  affairs  and  whose 
favor  is  desirable  is  indigenous  in  the  human  breast. 
It  seem  to  be  the  inference  which  the  reason  of  man 
draws  from  the  felt  necessity  of  a  primary  cause  and 
from  his  longing  for  something  better,  more  stable 
and  more  just  than  what  he  sees.  The  notions  enter- 
tained about  the  character  of  this  Being,  his  relations 
to  us,  and  the  means  of  appeasing  him,  are  as  various 
as  the  circumstances  which  have  surrounded  the  differ- 
ent races  and  nationalities.  In  all,  however,  the 
general  idea  is  that  of  one  to  be  worshipped,  obeyed 
and  propitiated. 

Without  some  notion  of  an  ideal  of  goodness 
represented  in  a  Superior  who  observes  and  approves 


426  MISCELLANEOUS   WRITINGS. 

or  disapproves  our  actions,,  it  is  difficult  to  keep  up 
any  sustained  effort  at  self-improvement.  The  indul- 
gence of  appetite,  passion,  dominion  and  ease  is  the 
strongest  and  most  constant  tendency  of  our  nature. 
An  innate  struggle  after  perfection  is  the  gift  of  but  a 
few  noble  and  exceptionable  mortals.  When  they 
arise  it  is  their  mission  to  elevate  the  race.  But  they 
can  only  lead  upward  the  common  herd  by  pointing 
to  the  Divine  Powers  which  bring  the  morning  sun 
and  the  refreshing  shower,  the  terrible  thunder,  the 
awful  earthquake.  A  belief  in  an  officious  God  is 
absolutely  necessary  to  elevate  and  purify  the  masses. 

Whilst,  therefore,  we  believe  that  the  essence  of 
religion  consists  in  goodness,  virtue,  and  moral  perfect- 
ness,  we  must  still  recognize  the  ability,  if  not  the 
necessity,  of  a  concrete  form  of  faith  and  worship  for 
mankind  in  general.  To  an  individual  man  it  may 
not  be  necessary.  A  creed,  a  dogma,  an  article  of 
faith  is  no  more  of  the  essence  of  religion  than  a  prop- 
osition of  geometry  is  such.  Both  may  be  expressions 
of  abstract  truth,  well  to  know  and  profitable  to 
believe.  But  whether,  for  example,  I,  as  an  individual, 
believe,  or  do  not  believe,  in  the  existence  of  a  personal 
devil,  or  a  burning  hell,  does  not  touch  my  religious 
character.  I  may  be  just  as  religious  subjectively, 
just  as  reverent  toward  God  and  benevolent  toward 
men,  with  or  without  this  belief. 

The  dogmas  which  one  religion  requires  us  to  accept 
may  be  nearer  the  exact  truth  than  those  of  another ; 
and  yet  the  purpose  of  religion  may  be  better  sub- 
served by  the  latter  than  the  former;  though,  of 
course,  this  would  be  an  exceptional  result.  It  is  best 
to  believe  what  is  true,  as  well  as  desire  what  is  good. 


ESOTERIC   THOUGHTS   ON   RELIGION.  427 

But  we  must  not  suppose  that  a  particular  religion 
is  useless  or  pernicious  because  it  inculcates  some 
errors.  What  religion  is  free  from  errors  ?  As  no 
two  religions  are  entirely  alike  in  their  articles  of  faith, 
it  would  be  great  arrogance  for  any  one  to  set  itself 
up  as  absolutely  infallible.  I  know  that  the  devotees 
of  each  think  theirs  is  so,  but  no  sensible  or  thinking 
man  admits  the  justness  of  such  bigoted  notions.  We 
will  find  some  bad  as  well  as  some  good  in  all  religions  ; 
and  we  will  also  find  that  almost  all  subserve  a  useful 
purpose  in  preserving  amongst  mankind  a  sense  of 
Divine  Presence,  Power  and  Goodness,  and  of  some- 
thing to  live  for  superior  to  the  sordid  objects  of 
vulgar  life. 

But  as  the  religions  of  different  people  in  the  same 
age  greatly  differ  in  the  moral  effects  which  they  pro- 
duce, so  it  is  most  natural  to  suppose  that,  in  differ- 
ent ages,  as  men  rise  in  the  scale  of  intelligence  and 
refinement,  religious  ideas,  as  well  as  other  depart- 
ments of  thought,  become  more  elevated  and  enlarged. 
It  cannot  be  that  this  department  of  human  conscious- 
ness should  be  forever  fixed  in  a  cast-iron  vesture 
incapable  of  development  or  change.  The  great  variety 
of  excellence  which  prevails  in  actual  religions  is 
proof  to  the  contrary. 

In  every  other  science  there  is  progress,  why  should 
there  not  be  progress  in  religious  science  ?  Are  we 
forever  to  look  for  our  models  of  faith  and  duty  in 
the  patriarchs,  who  believed  God  to  be  the  special 
guardian  of  Palestine  and  of  a  particular  family,  and 
'to  have  corporeal  limbs  and  features;  and  who 
thought  it  pleasing  to  him  to  cut  off  the  hands  and  feet 
of  their  enemies,  and  to  rob  them  of  their  possessions 


428  MISCELLANEOUS   WRITINGS. 

without  provocation  ?  Yet  we  must  do  this  if  we 
accept  the  theory  that  revelation  of  Divine  truth  was 
miraculously  made  to  these  men  at  first  hand  and  has 
never  been  made  except  through  Hebrew  prophets  and 
seers.  Is  it  not  more  consonant  to  the  Divine  benefi- 
cence, to  its  manifestations  in  the  natural  world,  and 
to  what  we  know  of  the  facts  in  the  progress  of 
humanity  itself,  to  look  for  this  revelation  on  every 
hillside  and  in  every  valley  where  wells  of  moral  purity 
and  freshness  have  sprung  up  ;  and  in  the  accumula- 
tions of  spiritual  wisdom  which  have  been  gathered 
together  in  all  lands  ?  Is  God  the  loving  father  of  only 
a  single  tribe,  and  a  stepfather  to  the  rest  of  his 
creatures,  or  may  we  not  rather  expect  the  influence 
of  His  Spirit  to  be  breathed  upon  all  ? 

The  same  narrow  theory  was  once  applied  to  nature 
herself.  It  was  boldly  asserted  and,  indeed,  not  to  be 
gainsaid,  that  all  things  were  made  by  one  creative 
feat  about  six  or  seven  thousand  years  ago — stratified 
rocks,  veins  of  ore,  growing  trees  with  perfect  annular 
rings,  and  all  things  else  as  we  now  see  them ;  and 
that  the  present  animal  and  vegetable  kingdoms  are  the 
results  of  direct  lines  of  ordinary  generation  and  ger- 
mination from  the  original  forms  !  as  though  creative 
energy  never  stirred  but  on  a  single  occasion,  and  is 
not  always  in  active  operation,  constantly  producing 
by  the  eternal  and  slowly  grinding  mills  of  Omnipo- 
tence endless  varieties  of  organism  exhibited  in  geolog- 
cal  successions  of  being  here,  and  in  cosmic  successions 
in  the  regions  of  space.  But  this  narrow  theory  of  a 
six-day's  creation,  the  logical  inference  of  an  anthrop- 
omorphic God,  has  given  way  before  the  strong  and 


ESOTERIC   THOUGHTS   ON   RELIGION.  429 

indelible  characters  of  truth  which  are  inscribed  on 
every  page  of  Nature's  great  Book,  from  the  fossils  of 
the  earth  to  the  flaming  orbs  and  fading  nebulas  of 
heaven. 

There  is  in  fact  and  in  truth  a  strong  analogy 
between  the  progress  of  material  and  spiritual  philos- 
ophy. In  the  spiritual  world,  as  in  the  material,  it 
was  but  natural  for  the  infant  understanding  to  limit 
the  first  Cause  and  Governor  of  the  Universe  by  the 
limited  conceptions  which  it  had  of  the  Universe  itself, 
and  to  make  Him  altogether  such  an  one  as  man,  only 
with  enlarged  powers  and  presence.  No  one  can  read 
the  Book  of  Job  without  feeling  that  he  introduced  to 
the  spiritual  longings  and  gropings  of  a  primative  age, 
when  the  elements  of  known  religious  truth  were  few 
and  simple.  He  recognizes  the  same  fact  in  reading 
Homer,  Hesiod  and  the  early  Greek  dramatists.  Com- 
paring these  with  the  luminous  teachings  of  a  Paschal, 
or  Fenelon,  or  a  Leigh  ton,  he  would  have  a  demon- 
stration of  progressive  enlargement  in  the  scope  of 
spiritual  insight,  and  would  clearly  see  that  in  religious 
things,  as  in  scientific,  the  world  moves. 

How  prolific  in  spiritual  discoveries  and  results  a 
single  germinal  thought  has  often  proved,  evolved 
almost  unconsciously,  perhaps,  in  the  sublime  throes 
of  a  great  spirit  in  a  state  of  exaltation.  "Do  unto 
others  as  ye  would  that  they  should  do  unto  you." — 
"Love  is  the  fulfilling  of  the  law,"  are  instances. 
Dropping  like  prolific  seed  into  the  receptive  conscious- 
ness of  the  seekers  of  truth,  they  have  expanded  in 
the  next  age  into  broader  and  more  elevated  views  of 
life  and  destiny.  Of  this  character  are  many  of  the 
utterances  so  sublimely  expressed  in  the  old  Jewish 


430  MISCELLANEOUS   WRITINGS. 

prophets.  In  spiritual  eleyation  and  discernment  the 
Orientals,  and  especially  the  Hebrew  prophets,  were 
far  in  advance  of  the  Greeks  ;  whilst  the  latter  excelled 
in  metaphysical  speculation  and  logic.  When  these 
two  systems  of  thought  came  in  contact,  each  found 
excellencies  in  the  other  which  could  not  fail  to  pro- 
duce useful  results.  It  needed  a  seer  of  deep  spiritual 
insight  and  great  breadth  of  view,  caught  only  by 
soaring  aloft  above  the  influences  of  passion  and 
selfishness,  to  eliminate  from  the  existing  systems  some 
new  and  better  philosophy  than  the  world  had  yet 
seen.  The  outward  forms  of  the  Jewish  religion  had 
become  burdensome  and  useless.  The  heathen  religions 
had  ceased  to  command  respect,  even  in  their  own 
seats.  A  new  religion,  more  spiritual,  more  catholic, 
and  better  adapted  to  all  forms  of  social  life,  and  to 
all  degrees  of  civilization,  became  a  necessity  of  the 
advancing  ages,  and  of  the  amalgamation  of  the 
different  nationalities.  Hence  arose  Christianity. 

The  foundations  of  such  a  religion  as  the  world  then 
wanted  were  laid  by  Jesus  of  Galilee,  aptly  called  by  his 
followers,  familiar  with  Jewish  conceptions,  Messiah, 
Christ,  the  Anointed  or  Sanctified  One.  He  enunciated 
and  strikingly  enforced  the  great  central  religious 
truth— that  the  heart,  or  the  spiritual  centre  of  man,  is 
the  place  where  righteousness,  or  true  religion,  must 
begin  and  end.  If  that  is  right,  all  is  right.  This  is 
what  is  meant  by  Faith.  The  life  will  be  evolved 
accordingly.  The  life  is,  and  always  will  be,  the  out- 
growth of  the  true  inward  nature.  They  are  related 
as  cause  and  effect  and  cannot  be  dissevered.  He  also 
taught  the  other  great  fundamental  religious  truth, 
that  this  inner  righteousness,  or  true  religion,  consists 


ESOTERIC   THOUGHTS   ON   RELIGION.  431 

of  love— love  to  God  and  man.  The  essential  condi- 
tion of  religion,  namely,  sincerity,  or  faith,  by  which 
it  is  grounded  in  the  inner  heart  of  man ;  and  the 
essential  nature  of  religion,  namely,  love ;  these  con- 
stituted the  chief  corner  stones  of  the  new  religion  of 
Christ.  These  are  seminal  truths,  if  not  discovered, 
certainly  placed  in  bold  relief  by  Jesus  of  Nazareth. 

It  is  plain  that  such  a  religion  must  have  involved 
antagonism  to  superstitious  observance.  But  it  was 
only  relatively,  not  absolutely,  hostile  to  observances 
and  rites.  It  demanded  to  stand  first,  and  that 
observances  and  ceremonies  (if  used)  should  occupy 
but  a  secondary  place  ;  of  no  value,  excepts  as  helps 
and  aids  of  inward  purity  and  holiness. 

This  was  Christ's  great  work,  sealed  with  his 
blood.  He  taught  no  dogmas  but  one — that  God  is 
our  Father  and  that  we  are  all  brethren.  The  work 
of  communicating  the  new  religion  to  the  western 
world  fell  upon  Paul,  a  scholar  versed  in  both  learn- 
ings. He  became  the  great  Apostle  of  the  Gentiles. 
By  his  zeal,  his  learning  and  his  prudence,  he  laid  the 
foundations  of  the  Christian  Church  as  it  remains  to 
the  present  day. 

Paul  adopted  a  few  simple  dogmas  as  the  theory 
or  skeleton  around  which  he  built  up  the  wonderful 
structure  of  spiritual  life  and  growth  and  moral  power 
which  so  commended  Christianity  to  the  nations,  and 
so  elevated  them  in  the  scale  of  civilization  and  refine- 
ment. The  principal  of  these  dogmas  were  the  atone- 
ment and  the  resurrection. 

The  necessity  of  atonement  or  conciliation  of  the 
Divine  anger  was  so  deeply  rooted  in  the  minds  of  all 
nations  that  no  propounder  of  a  new  religion  would 


432  MISCELLANEOUS  WRITINGS. 

have  been  listened  to  for  .a  moment  who  had  not 
something  of  the  kind  to  offer  to  sin-conscious  mortals. 
Paul  offered  it  in  a  way  that  secured  the  abolition  of 
the  old  disgusting  and  expensive  sacrifices,  and,  at  the 
same  time,  an  increased  veneration  for  the  founder  of 
his  religion.  To  meet  the  vast  demands  of  propitia- 
tion for  the  sins  of  a  world  required  an  exaltation  of 
the  Person  of  this  Founder  above  the  state  of  ordinary 
humanity  ;  though  it  cannot  be  justly  said  that  Paul 
taught  the  essential  Divinity  of  Christ  in  the  modern 
sense  of  that  term. 

The  resurrection  was  a  Jewish  dogma  adopted  not 
long  before  the  Christian  era.  It  supposed  that  men 
will  rise  out  of  their  graves  in  bodily  form,  and  thus 
have  a  renewed  life.  The  Old  Testament  did  not  teach 
a  future  state.  The  Greeks  had  borrowed  the  idea  of 
Hades  and  the  Shades  from  the  Egyptians,  and  the 
separate  existence  and  indestructibility  of  the  soul 
from  the  metempsychosis  of  the  Brahmins.  Refining 
upon  these  notions,  they  deduced  the  immateriality  of 
the  Spirit  and  the  immortality  of  the  soul.  When  the 
Greek  philosophy  became  the  basis  of  all  learning 
among  Christian  scholars,  this  view  was  adopted  in 
connection  with  that  of  the  resurrection,  and  is,  at 
present,  the  prevailing  doctrine  of  the  Church.  But 
Paul,  a  good  Grecian,  was  compelled  to  admit  that 
the  body  which  would  reappear  would  be  a  "  spiritual 
body,"  rather  a  contradiction  in  terms. 

Whatever  dogmas,  from  time  to  time,  may  have 
prevailed  as  matters  of  voluntary  or  compulsory 
belief,  the  great  central  truth  taught  by  Christ  and 
reiterated  and  enlarged  by  His  Apostles— that  true 
religion  dwells  in  the  heart  by  faith,  and  that  it  con- 


ESOTERIC   THOUGHTS   ON   RELIGION.  433 

sists  of  love— has  never  been  entirely  lost  sight  of,  and 
has  acted  as  a  perpetual  leaven,  imparting  moral  life 
to  the  Church  and  to  Christendom. 

Meantime,   human  thought   has   not   been   at   a 
stand-still.     Whilst  endless    webs    of   fine-spun    and 
ingenious  theories  have  been  woven  by  theologians 
and   scholars,    embracing   the   nature   and   mode   of 
existence  of  God  and  all  things,  most  of  which  have 
been   consigned   to   the    lumber  garret   of   oblivion, 
thoughtful    minds    have    continued    to    explore    the 
hidden  laws  of  our   own   spiritual   nature,  and  the 
motives   and   forces   by    which    it   is   moulded    and 
swayed,  and  have  bestowed  profound  study  on  human 
life  and  destiny.     As  a  result  we  have  a  grand  system 
of  true   spiritual   philosophy   by   the   light  of  which 
we  may  be   unerringly   guided   to   good   and   noble 
ends  and  to  the  formation  of  good  and  noble  characters. 
To  this  end,  without  giving  ourselves  up  to  childish 
superstitions,    we    may  reverently   study    the    more 
highly  inspired  portions  of  the  sacred  volume,  espe- 
cially the  Psalms,  the  Proverbs,  the  Prophets  and  the 
New  Testament,   and   also  the  standard  works    of 
religious  instruction  and  piety.     To  this  end,  also,  we 
may  profitably  study  the  works  of  the  Wise  and  Good 
of  all  ages  and  nations,  using  at  all  times  the  lights 
of  reason   and  conscience  in  judging  what  is  good 
and  rejecting  what  is  bad  or  useless.     Nor  ought  we 
to  abandon  the  institutions  of  religions  and  the  moral 
and  religious  teachings  of  the  church.     If  we  do  not 
assent  to  all  the  theological  dogmas  which  we  hear, 
.  we  can  extract  much  of  spiritual  good  ;  and  we  must 
remember  that  the  mass  of  mankind  have  no  other 
resource  for  edification  and  comfort.     We  should  treat 


434  MISCELLANEOUS  WRITINGS. 

their  weaknesses  with  tenderness  and  their  prejudices 
with  respect.  It  would  be  worse  than  useless  to  fly 
in  the  face  of  the  conscientious  convictions  and  cher- 
ished hopes  of  those  with  whom  it  is  our  lot  to  live. 
We  should  only  lose  tjieir  friendship  and  respect  with- 
out conferring  upon  them  any  benefit. 

Much  has  been  said  of  the  efficacy  of  prayer. 
Those  like  Professor  Tyndal,  who  considered  the  world 
to  be  governed  by  unchangeable  laws,  cannot  conceive 
any  advantage  to  arise  from  applications  to  the 
Supreme  Being.  But  the  effort  made  by  the  soul  to 
lift  itself  up  into  close  communion  with  the  Almighty 
Spirit  of  Holiness  and  Purity  has  a  purifying  influence 
on  the  soul  itself,  repressive  of  the  gross  and  animal 
nature,  and  of  all  pride  and  vain  conceit,  and  attract- 
ing to  it  for  the  time  being  a  portion  of  that  sanctity 
which  it  adores.  In  this,  undoubtedly,  consists  the 
true  value  of  prayer.  I  would,  by  all  means,  urge  the 
continuance  of  this  elevating  and  purifying  exercise  in 
connection  with  the  other  means  employed  for  the 
edification  of  the  spiritual  nature. 

Pursuing  the  course  indicated,  with  a  sincere  desire 
for  spiritual  and  practical  improvement,  and  a  mind 
lifted  up  with  a  yearning  for  communion  with  that 
Divine  Being  who  is,  who  must  be,  our  loving  Father 
(or  he  would  not  have  created  us),  the  soul  will  become 
purified  and  gloriously  prepared  for  all  the  duties  and 
trials  of  life  and  death,  and  for  the  unknown  issue  of 
the  world  to  come. 

My  conclusion,  then,  is  this  :  God  is  everywhere, 
and  always  the  same.  He  forms  and  informs  all 
things  visible  and  invisible.  His  creative  power  has 
not  ceased  to  operate,  but  is  working  now  and  will 


ESOTERIC   THOUGHTS   ON   RELIGION.  435 

always  work  by  eternal  laws.  His  spirit  still  inspires, 
and  it  has  always  inspired,  elevated  and  spiritual  souls 
with  thoughts  far  above  and  beyond  the  reach  of 
ordinary  mortals.  He  breathes  through  their  minds 
those  Divine  strains  which  seem  like  the  far  off  harmony 
of  the  other  worlds.  But  this  is  no  greater  display  of 
His  infinite  and  all-pervading  energy  than  the  growing 
of  the  blade  of  grass  or  the  forming  of  the  snowflake. 
It  is  for  us  to  adore  and  love ;  to  be  humble  and  trust- 
ful ;  to  be  pure  and  good ;  to  be  just  and  loving  and 
kind.  It  is  for  us  to  work  and  labor  in  our  lot,  pro- 
ducing sunshine  and  gladness  wherever  we  go.  It  is 
for  us  to  love  our  country  and  to  sustain  its  institu- 
tions and  laws ;  to  conform  as  far  as  we  can  to  the 
religious  forms  and  customs  which  prevail  and  with 
which  we  can  best  sympathize,  remembering  that  to 
most  people  those  things  are  vital  supports  of  their 
moral  nature.  It  is  for  us  to  build  up  and  not  to  pull 
down ;  to  be  a  blessing  in  our  day  and  not  a  curse ; 
to  seek  truth  wherever  it  is  to  be  found,  and  to  advo- 
cate it  at  all  times  when  its  advocacy  will  be  tolerated, 
but  not  to  allow  our  confidence  in  our  opinions  to 
interfere  with  our  usefulness  to  others.  Finally,  it  is 
for  us,  through  all  difficulties  and  temptations,  to 
pursue  an  honorable,  dignified,  truthful  and  loving  life, 
so  that  whenever  our  task  is  done,  we  may  depart 
amidst  the  blessings  of  mankind  and  be  remembered 
for  our  good  deeds. 
This  is  my  religion. 

July  4,  1876. 


• 


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